HomeMy WebLinkAboutC39110 Dsgn-Installation of Electric Vehicle Charging (EVC) Stations at City Hall 701-20CONTRACT NO. C39110
STAFF REPORT
CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
MEETING DATE: August 22, 2019
PREPARED BY: Emily Roethler, Project Manager
REQUEST: Award Contract No. C39110 to ABM Electrical and Lighting Solutions, Inc., of
Tustin, California, for the design and installation of new electric vehicle
charging stations at City Hall (Project No. 701-20).
Recommendation
By Minute Motion:
1. Award Contract No. C39110 to ABM Electrical and Lighting Solutions, Inc., of
Tustin, California, for the design and installation of new electric vehicle
charging stations at City Hall in the amount of $244,225.
2. Authorize the Director of Finance to set aside a 15 percent (15%) contingency
in the amount of $36,600.
3. Appropriate $34,225 from the Air Quality Management Distribution (AQMD)
Fund for the difference of the approved budget and the total contract award
and authorize the appropriation of $36,600 from the General Fund Unobligated
Reserves for the contingency, should it be needed.
4. Authorize the City Manager or designee to review and approve written
requests for the use of the contingency for unforeseen conditions.
5. Authorize the City Manager to execute the Agreement and any necessary
change orders.
Upon approval of the above actions, funds will be available in Account No. 2384515-44001000,
AQMD Fund.
Strategic Plan
The Energy and Sustainability Priority 2 goal to promote greater usage of more sustainable
materials is highlighted with this project. The Priority 2 goal helps to reduce air pollution and
expands the availability of alternative fuel options throughout the community.
Background
Southern California Incentive Project (SCIP) is a funding source that has been made available to
promote the expansion of zero -emission vehicle infrastructure. The incentive includes up to
$140,000 for reimbursable costs or 75% of the total project cost, whichever is less. In December
2018, City staff submitted an application to SCIP for $140,000 to construct four new charging
stations at the City's campus. In February 2019, staff received notice that funds for the full
$140,000 were reserved for new vehicle charger installation in the parking lot north of City Hall
August 22, 2019 - Staff Report
Contract No. C39110 with ABM Electrical and Lighting for Project No. 701-20
Page 2of2
adjacent to Fred Waring Drive. The grant requires the project to be completed within one year
from the date funds become available. Based on the award date, the grant funds for this project
will lapse on February 20, 2020.
This design/build project was advertised on June 19, 2019 and June 26, 2019. On July 25, 2019,
sealed proposals were received and evaluated by a team of staff members. Proposals were
received from the following firms:
CONSULTANT LOCATION
ABM Electrical and Lighting Solutions, Inc. Tustin, CA
A.M. Ortega Lakeside, CA
Schaffer Construction, Inc. Los Angeles, CA
The selection panel consisted of the Facilities Manager, Project Manager, Planner and Economic
Development. After evaluating each proposal based on the qualifications of the firm, technical
approach/work plan, and the completeness of response, Staff is recommending the award of
Contract No. C39110 to ABM Electrical and Lighting Solutions, Inc. Upon selection, staff confirmed
that not only was this firm the most qualified, but also provided the lowest fee proposal.
Project Description
Staff is requesting an appropriation The Consultant will be required to produce a turnkey project,
which includes design, purchase, and installation of two (2) new DC Fast Chargers (DCFC) and one
(1) Level 2 charger at City Hall. The Consultant is required to coordinate with Southern California
Edison (SCE) and to provide to the City all documentation as required by the SCIP grant. This project
is anticipated to be completed and operational by December 14, 2019.
Fiscal Analvsis
Staff is requesting an appropriation of funds from the AQMD fund for the balance of the contract
($34,225) over the budgeted line item ($210,000) and requesting that the Council authorize an
appropriation in the amount of the contingency ($36,600), if needed, from the Unobligated
General Fund Reserves. At the end of the project, only the portion of the contingency that is used
will be spent from the General Fund.
LEGAL REVIEW DEPT. REVIEW
N/A
Robert W. Hargreaves Tom Garcia, P.E.
City Attorney Director of Public Works
FINANCIAL REVIEW CITY MANAGER
et M. Moore Lauri Aylaian
Director of Finance City Manager
CONSULTANT: ABM Electrical and Lighting Solutions, Inc.
14201 Franklin Avenue
Tustin, CA 92780
ATTACHMENT: Vicinity Map
Proposal
Agreement
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Electric Vehicle Charging Station at City
z Hall
Project No. 101-20
1:4,547 Contract No. C39110
ABMs
Building Value
City of Palm Desert
Project Number 701-20
Electric Vehicle Charging Station at City Hall
Proposal Presented By
ABM Electrical and Lighting Solutions, Inc.
14201 Franklin Ave. Tustin, CA 92780
Michael Wright, Sales Executive
(949) 888-2340 michael.wright@abm.com
July 25, 2019
Table of Contents
ITEM
Title Sheet and Table of Contents
Letter of Transmittal
Preliminary Site Plan
PAGE
1
2
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ABM#
Building Value
LETTER OF TRANSMITTAL
City of Palm Desert, Department of Public Works
Attention: Emily Roethler, Project Manager
73-510 Fred Waring Drive
Palm Desert, CA 92660-2578
Re: Project No. 701-20, Electric Vehicle Charging Station at City Hall
Ms. Roethler,
ABM Electrical and Lighting Solutions (ABMELS) is pleased to present you with the following
proposal for turnkey installation of electric vehicle charging equipment and related electrical
infrastructure at the City of Palm Desert City Hall. We have organized our proposal in a
straightforward manner which follows the RFP format and ensures compliance with the City's
RFP response requirements. Our response and proposal are as follows:
LETTER OF TRANSMITTAL MANDATORY INFORMATION
A. Identification of Proposer
1. Contact with authorization to commit to contractual terns and conditions:
Joe Zentgraf, VP and Regional Manager
2. Legal company name, corporate address, telephone, fax number and e-mail
address:
ABM Electrical and Lighting Solutions, Inc.
14201 Franklin Ave. Tustin, CA 92780
p. (949) 888-2340 f. (949) 888-2350 service@abm.com
3. Contact person during the proposal evaluation phase:
Michael Wright, Sales Executive, 14201 Franklin Ave. Tustin, CA 92780
c. (949) 214-6000 michael.wdght@abm.com
B. Identification of Proposed subcontractors
1. Legal Company Name:
Ortiz Construction Services, a Division of Ortiz & Son, Inc.
2. Contact person's name, address, phone number.
Tony Brunetti, 7161 McNeil Buena Park, CA 90620, (714) 522-3994
3. Working relationship between Proposer and subcontractor.
ABMELS will utilize Ortiz Construction Services as a trenching and concrete
subcontractor for this project.
C. Acknowledgement and recelpt of RFP addenda:
ABMELS has received and acknowledges RFP Addendum No. 1, dated July 17, 2019.
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D. Proposal valid for 65 days:
This proposal shall remain valid for a period of (65) days from the date of submittal.
E. Authorized Signature
See signature line below for signature of authorized signer.
F. Submittal is true and correct
Authorized signer (below) hereby attests that all information submitted with the submittal
is true and correct.
TECHNICAL PROPOSAL
A. Qualifications
1. Profile — ABMELS is a Type C Corporation founded in 1909 and is a wholly owned
subsidiary of ABM Industries, Inc., an NYSE fortune 500 company with more than 6
billion dollars in annual sales. ABMELS is a licensed electrical contractor, State
license C-10 967676. The local office servicing Palm Desert is in Tustin, CA. and the
company has more than 25,000 employees in California, including 20 State -Certified
Journeyman electricians who utilize a full compliment of company -owned vehicles
and equipment.
2. Prior Experience — ABMELS has installed more than 900 EV charging stations in
California and ABMELS and its sister divisions have installed more than 8,000
charging stations nationally. ABMELS has performed turnkey design and installation
EV projects for commercial and government customers, including municipalities.
Please see references below for additional information on turnkey projects for
Municipalities.
3. Key Staff Members
o Michael Wright -- Michael is Sales Executive with more than 30 years'
experience in the electrical business, including more than 15 years as an
electrician in the field. He has personally developed and designed more than
50 turnkey EV installation projects and is the company's subject matter expert
on EV charging installations. Michael has extensive knowledge on EV
electrical service and infrastructure upgrades, ADA and accessibility
requirements, permitting, and EV charging equipment installation and
commissioning.
o Frank Alamo — Frank Alamo is a Field Superintendent with more than 10
years' experience as a field electrician and project manager. Frank has
performed, supervised or managed multiple EV installation projects and is an
expert in electrical system design, EV infrastructure and engineering and
permits related to EV installations.
o Francisco Santizo — Francisco Santizo is an electrical Project Manager with
more than 20 years' experience in the electrical industry, including more than
10 year; in the field as an electrician. Francisco has managed more than 10
EV charging station installation projects and has managed more than 20
projects for government entities, including municipalities.
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o Joe Zentgraf — Joe Zentgraf is Vice President and Regional Manager for
ABMELS, with full managerial responsibility for the company in the greater
Los Angeles, Inland Empire and Desert areas. Joe has more than 35 years'
experience in the electrical industry, including many years in the field as an
electrician and most every management position, up to and including VP and
Regional Manager.
o Ortiz Construction, Tony Brunetti (sub -contractor) — ABMELS has worked with
Tony Brunetti and Ortiz construction on more than 30 EV charging station
projects in Southern California. Ortiz provides saw cutting, trenching, concrete
and asphalt installation services as well as expert ADA compliance design
and services. See above for address.
B. References
1. City of Signal Hill
2175 Cherry Ave. Signal Hill, CA 90755
Kelli Tunnicliff, P.E. Director of Public Works
562 989-7356 KTunnicl1ff0.c1tvofsianalhill.om
11/2018 — installed EV charging stations and upgraded electrical service in
City Hall parking lot.
2. Worthe Real Estate Group — The Burbank Studios
3000 W. Alameda Ave. Unit 130 Burbank, CA 91505
Matt Jones, Property Manager
(818) 840-3025 mattiDworthe.com
20 EV chargers installed to date at 5 facilities
3. Kingston Technology Company, Inc.
17600 Newhope Street Fountain Valley, CA 92708
Michael Vo, General Affairs Coordinator
(714) 885-7819 michael vo6kinaston.com
15 EV chargers installed at large corporate campus
4. ABM has installed more than 8,000 EV charging stations nationally and can
provide additional references upon request.
TECHNICAL APPROACH
A. Layout
The proposed location of the new charging stations and electrical equipment were
discussed on the site walk, and ABMELS agrees that the proposed equipment locations
are the best available and will work well for this project. Additionally, potential State of
Califomia CBC 11.13.228 ADA requirements for EV charging stations appear to have
been satisfied on a previous nearby installation.
B. Electrical Design
ABMELS has created a comprehensive design for this project which provides the City
with high quality new electrical infrastructure for the new charging equipment. The
design includes new low profile meter/main equipment specifically designed for EV
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charging applications, as well as a transformer and additional electrical equipment
needed to power the new charging stations. Post award, and in order to meet the strict
timelines associated with this project, ABMELS will proceed with 100% submittal
drawings as soon as possible.
C. SCE Service Requirements
ABMELS contacted Nicholas Golde, SCE's service planner in the Palm Spring office
who has been assigned to this project. We confirmed that the existing transformer
(#P5700005) has or will have the capacity to operate the new charging equipment and
we confirmed SCE's timelines for this project. ABMELS has included an allowance for
SCE service activation charges in the cost proposal and allowed time for SCE's work on
the project timeline. Please note that ABMELS has also included costs for our electrical
engineer to design the SCE portion of the new electrical service (primary power feed
from SCE vault) instead of using SCE's in-house design service. By performing the
primary power feed portion of the design ourselves, we potentially save from 1 to 4
months in design time which may have been required if SCE did the design in-house.
D. Charging Stations
ABMELS will install and commission (1) new Charge Point CT-4021 dual pedestal
mount charger and (2) new Charge Point CPE-250 DC Fast charger units. These are
state of the art charging stations which are reliable, easy to use and connected to an
extensive network. ABM has installed more Charge Point equipment than any other
contractor in the United States, and highly recommends these stations. Extended
service agreement and warranties, as described below, are also included in this
proposal.
WORK PLAN
Scope of Work
• Obtain all applicable building permits'
• Excavate at SCE tfmr to provide access to tfmr vault for conduit installation and connection*
• Excavate for conduit and concrete equipment pad
• Install 4" PVC ducts (2) from SCE tfmr vault to area for equipment including 4" PVC ducts
between equipment installations on pad
• Install Milbanks electrical meter enclosure CP38B6511 DW50AMGTRSPI onto pad
• Install 150kVA 480-208/120-v transformer on pad and connect to Milbanks enclosure
• Install all related service conductors between meter enclosure and transformer
• Trench in planter as required to install PVC conduit and wire to front of parking spaces
• Complete PVC conduit installation to charger locations and stub up at (3) locations
• Excavate and pour (3) concrete charger bases
• Furnish, assemble and install (1) Charge Point CT-4021 dual pedestal mount charger
• Furnish, assemble and Install (2) Charge Point CPE-260 DC Fast charger units
• Install (4) "EV Charging Only" sign posts in front of charging spaces
• Stripe/stencil (4) charging spaces with "EV Charging Only"
• Make all wire connections, energize and test EV units
• Commission units and verify connection to network software
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Building Value
• Includes 5-year commercial service agreement per new charge port (4) total
• Includes a 5-year'Assure' parts and labor warranty on all units
Note: All materials and labor is under warranty for one year after installation. We are not
responsible for the condition or capacity of the existing electrical system, but we will note
any problems we find as work is completed. ABMELS is not responsible for any vandalism
that occurs during or after the installation of materials. Price quotes are good for 65
days. Payment terms: Due net "30 days". Labor rates used in the proposal are prevailing
wage first shift for Riverside County, CA.
*Special Note Regarding Permits and Technical Drawings: A permit fee is
assumed to be waived as no charge. We will provide drawings as needed for
electrical permits. Anticipated SCE standard utility connection fees are included.
Proposal for installation based on assumed available loading of exiting transformer
as confirmed with SCE service planner.
Special Note Regarding ADA and Accessibility Requirements: ABMELS is not
responsible for any ADA requirements deemed necessary either by municipal or state
agencies. Our quote is for the installation of the electrical system(s) necessary to the
specific scope outlined for the EV Chargers specked. It does not include surface
modifications, striping removal, re -striping, etc. that would be necessary to comply with
ADA or Accessibility Requirements.
TASKS AND SCHEDULE
Task Name
Notice to Proceed
Engineering and 100% Drawings
Materials Submittals to City
Submittals Approval
Order Materials*
Trenching, excavation
Electrical underground
Backfill, concrete
Electrical gear and wiring
Equipment installation
Testing & commissioning
Wee cs
Days 1 2 4 5 6 7 8 9 10 11 12
10
5
5
5
5
5
5
5
2
Customer acceptance 2
* Lead times; meter/main - 6 weeks, ChargePoint equipment - 4 weeks
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PROJECT MANAGEMENT
• Professional Project Management — A single point of contact Project Manager will
manage the project and coordinate all activities with all project stakeholders. The
Project Manager will ensure quality control through review of project contract, plans and
specifications as well as site visits and inspections. Project schedule, budget (as
applicable), and progress will be tracked with a customer -accepted look ahead format
as well as weekly project update calls and site meetings.
• Project issues — The Project Manager will identify or clarify any issues and address
them in writing to the customer or other stakeholders as needed.
COST AND PRICE
See attached separate and sealed Cost Proposal.
We sincerely appreciate the opportunity to present this proposal and look forward to getting
started on the project in the very near future.
Respectfully
ABM Electrical a Li g Solutions, Inc.
Vice PresidentAliid Regional Manager
Preliminary Layout
City of Palm Desert EV Charging Station Installation
73.510 Fred Waring Drive, Palm Desert CA 92250
LOCATION OF WORK
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CONTRACT NO. C39110
CITY OF PALM DESERT
DESIGN -BUILD CONTRACT
1.1 Contract for Desion and Construction.
This Design -Build Contract is effective as of the 22"d day of August, 2019, by and between
City of Palm Desert, a charter city organized and existing under the laws of the State of
California ("City"), and ABM Electrical and Lighting Solutions, Inc. ("Design -Build
Entity").
The parties agree as follows:
A. Design -Build Entity, for and in consideration of the payment to be made to Design -
Build Entity as hereinafter provided, shall furnish all plant, labor, technical and
professional design services, supervision, materials and equipment, other than such
materials and equipment as may be specified to be furnished by City, and perform all
operations necessary to complete the Work in strict conformance with the Contract
Documents (defined below) for the public work of improvement titled:
Project No. 701-20
Electric Vehicle Charging Stations at City Hall
Design -Build Entity is an independent contractor and not an agent of City. The Design -
Build Entity and its surety shall be liable to City for any damages arising as a result of
the Design -Build Entity's failure to comply with this obligation.
B. The Design -Build Entity is made up of ABM Electric and Lighting Solutions, Inc., which
shall function as the designer and Architect/Engineer of Record for the Project and
provide all architectural/engineering design services, and shall function as the general
contractor for the Project and provide all construction services for the Project together
with its chosen subcontractors. For purposes of this Contract, Joe Zentgraf, VP and
Regional Manager, shall execute the Contract on behalf of the Design -Build Entity
and shall have the authority to make all decisions necessary on behalf of the Design -
Build Entity. Notwithstanding the foregoing, City may accept bonds naming the
Design -Build Entity as principal and professional liability insurance naming the
member of the Design -Build Entity designated for design/architectural services as
named insured.
Design -Build Entity shall perform all services required under the Contract Documents
in a skillful and competent manner, consistent with the standards generally recognized
as being employed by professionals qualified to perform such services in the same
discipline in the State of California.
C. Time is of the essence in the performance of the Work. The Work shall be commenced
by the date stated in City's Notice to Proceed. The Design -Build Entity shall complete
all Work required by the Contract Documents within 65 calendar Days from the
commencement date stated in the Notice to Proceed, which equates to a Project
Completion Date of November 27, 2019.
00 42 53 - DESIGN -BUILD CONTRACT
CONTRACT NO. C39110
By its signature hereunder, Design -Build Entity agrees the Project Completion Date is
adequate and reasonable to complete the Work.
D. City shall pay to the Design -Build Entity as full compensation for the performance of
the Contract, subject to any additions or deductions as provided in the Contract
Documents, and including all applicable taxes and costs, the Guaranteed Maximum
Price ("GMP") of Two Hundred Forty -Four Thousand Two Hundred Twenty -Five
and 00/100 Dollars ($244,225). Payment shall be made as set forth in the General
Conditions. Unless otherwise stated in the Contract Documents, the GMP shall pay
for all costs and expenses required to design and construct the Project.
Specifically included within the GMP is a City owned contingency in the amount of
Thirty -Seven Thousand and 00/100 Dollars ($37,000) ("City Owned Contingency").
City Owned Contingency shall be for the exclusive use of City as needed to pay for
unforeseen conditions and/or City added scope of work for the Project. City must
authorize any use of these contingency funds in writing before the Design -Build Entity
shall be entitled to any compensation from City Owned Contingency. Design -Build
Entity shall be responsible at all times for tracking and accounting for any expenditure
of City Owned Contingency. Any City Owned Contingency remaining at Project
completion shall remain the sole property of City. Other than City Owned Contingency,
the rest of the GMP is the sum payable to the Design -Build Entity to design and
construct the Project.
E. Design -Build Entity shall provide indemnification and defense as set forth in the
General Conditions.
F. No oral agreement or conversation with any representative or employee of City, either
before or after the execution of the Contract shall affect or modify any of the terms or
obligations herein contained. This Contract constitutes the entire agreement between
the parties hereto and no changes, alterations or modifications hereof shall be effective
unless in writing and signed by City.
G. The "Contract Documents" include only the following documents, each of which is
incorporated into this Contract by reference:
Request for Proposal ("RFP") and all addenda, attachments and
appendices
Design -Build Entity Proposal in response to RFP
Design -Build Contract and all addenda
General Conditions
Special Conditions
General Requirements
City approved Change Orders
Attachment 1 to this Contract - Design Professional Rate Schedule for
Extra Work
Attachment 2 to this Contract - Performance Bond
Attachment 3 to this Contract - Payment Bond
00 42 53 - DESIGN -BUILD CONTRACT
CONTRACT NO. C39110
Attachment 4 to this Contract - Escrow Agreement for Security (optional)
Attachment 5 to this Contract - Enhancements/Additional Scope of Work
Terms And Conditions
Attachment 6 to this Contract - Exclusions/Clarifications of Scope by the
Design -Build Entity
Completed and approved Construction Documents in accordance with the
General Conditions
The Design -Build Entity shall complete the Work in strict accordance with all of the
Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by
one of the Contract Documents and not by others shall be done as if required by all.
In the event of a conflict, the various Contract Documents will be given effect in the
order set forth in the General Conditions.
H. Each and every provision of law required to be included in these Contract Documents
shall be deemed to be included in these Contract Documents. The Design -Build Entity
shall comply with all requirements of applicable federal, state and local laws, rules and
regulations, including, but not limited to, the provisions of the California Labor Code
and California Public Contract Code which are applicable to this Work.
I. By my signature hereunder, as Design -Build Entity, I certify that I am aware of the
provisions of Section 3700 of the Labor Code which require every employer to be
insured against liability for worker's compensation or to undertake self-insurance in
accordance with the provisions of that code, and I will comply with such provisions
before commencing the performance of the work of this contract.
J. The parties do for themselves, their heirs, executors, administrators, successors, and
assigns agree to the full performance of all of the provisions contained in this Contract.
The Design -Build Entity may not either voluntarily or by action of law, assign any
obligation assumed by the Design -Build Entity hereunder without the prior written
consent of City.
K. All notices hereunder and communications regarding interpretation of the terms of the
Contract or changes thereto shall be provided by the mailing thereof by registered or
certified mail, return receipt requested, postage prepaid and addressed as follows:
CITY:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260-2578
DESIGN -BUILD ENTITY:
ABM Electrical and Lighting Solutions, Inc.
14201 Franklin Avenue
Tustin, CA 92780
Attn: Tom Garcia, P.E., Director of Public Works Attn: Joe Zentgraf, VP, Regional Manager
Any notice so given shall be considered received by the other party three (3) days after
deposit in the U.S. Mail, first class postage prepaid, addressed to the party at the
above address. Actual notice shall be deemed adequate notice on the date actual
notice occurred, regardless of the method of service.
00 42 53 - DESIGN -BUILD CONTRACT
CONTRACT NO. C39110
L. The persons executing this Contract on behalf of their respective Parties represent
and warrant that they have the authority to do so under law and from their respective
Parties.
[Remainder of Page Left Intentionally Blank.]
00 42 53 - DESIGN -BUILD CONTRACT
CONTRACT NO. C39110
IN WITNESS WHEREOF, this Contract has been duly executed by the above -named parties, on
the day and year above written.
CITY OF PALM DESERT ABM Electrical and Lighting Solutions, Inc.
AN
LAURI AYLAIAN
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
Best Best & Krieger LLP
City Attorney
[IF CORPORATION, TWO SIGNATURES,
PRESIDENT OR VICE PRESIDENT AND
SECRETARY OR TREASURER REQUIRED]
M
Its:
Printed Name:
By:
Its:
Printed Name:
Contractor's License Number and
Classification
DIR Registration Number
END OF CONTRACT
5 00 42 53 - DESIGN -BUILD CONTRACT
ATTACHMENT 1
DESIGN PROFESSIONAL RATE SCHEDULE FOR EXTRA WORK
[TO BE NEGOTIATED WITH THE DESIGN -BUILD ENTITY]
Design -Build entity shall only apply mark-ups as allowed in the General Conditions for
Overhead and Profit on design change directives.
END OF DESIGN PROFESSIONAL RATE SCHEDULE FOR EXTRA WORK
ATTACHMENT 1
Spec. No. 6 00 42 53 — DESIGN -BUILD CONTRACT
72500.00001\32100499.1
CONTRACT NO. C39110
ATTACHMENT 2
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Desert (hereinafter referred to as "City") has awarded to ABM
Electrical and Liahtina Solutions. Inc., (hereinafter referred to as the "Design -Build Entit7J an
agreement for Electric Vehicle Charaina Station at Citv Hall (hereinafter referred to as the
"Project').
WHEREAS, the work to be performed by the Design -Build Entity is more particularly set forth in
the Contract Documents for the Project dated Auaust 22. 2019, (hereinafter referred to as
"Contract Documents"), the terms and conditions of which are expressly incorporated herein by
reference; and
WHEREAS, the Design -Build Entity is required by the Contract Documents to perform the terms
thereof and to furnish a bond for the faithful performance of the Contract Documents.
NOW, THEREFORE, we, ABM Electrical and Liahtina Solutions. Inc., the undersigned
Design -Build Entity and as Surety, a
corporation organized and duly authorized to transact business under the laws of the State of
California, are held and firmly bound unto City in the sum of Two Hundred. Fortv-Four Thousand.
Two Hundred Twentv-Five Dollars ($244,225), the sum being not less than one hundred percent
(100%) of the total amount of the Contract, for which amount well and truly to be made, we bind
ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally,
firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Design -Build Entity, his or its
heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by,
and well and truly keep and perform the covenants, conditions and agreements in the Contract
Documents and any alteration thereof made as therein provided, on its part, to be kept and
performed at the time and in the manner therein specified, and in all respects according to their
intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all
materials and workmanship; and shall indemnify and save harmless City, its officers and agents,
as stipulated in the Contract Documents, then this obligation shall become null and void;
otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Project, unless otherwise provided
for in the Contract Documents, the guarantee obligation shall hold good for a period of two (2)
years after the acceptance of the work by City, during which time if Design -Build Entity shall fail
to make full, complete, and satisfactory repair and replacements and totally protect City from loss
or damage resulting from or caused by defective materials or faulty workmanship the above
obligation in penal sum thereof shall remain in full force and effect. However, anything in this
paragraph to the contrary notwithstanding, the obligations of Surety hereunder shall continue so
long as any obligation of Design -Build Entity remains. Nothing herein shall limit City 's rights or
the Design -Build Entity or Surety's obligations under the Contract, law or equity, including, but not
limited to, California Code of Civil Procedure section 337.15.
ATTACHMENT 2
Spec. No. 7 00 42 53 — DESIGN -BUILD CONTRACT
72500.00001\32100499.1
CONTRACT NO. C39110
As a part of the obligation secured hereby and in addition to the face amount specified therefor,
there shall be included costs and reasonable expenses and fees including reasonable attorney's
fees, incurred by City in enforcing such obligation.
Whenever Design -Build Entity shall be, and is declared by City to be, in default under the Contract
Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall
promptly, at City's option:
Take over and complete the Project in accordance with all terms and conditions
in the Contract Documents; or
2. Obtain a bid or bids for completing the Project in accordance with all terms and
conditions in the Contract Documents and upon determination by Surety of the
lowest responsive and responsible bidder, arrange for a Contract between
such bidder, the Surety and City, and make available as work progresses
sufficient funds to pay the cost of completion of the Project, less the balance of
the contract price, including other costs and damages for which Surety may be
liable. The term "balance of the contract price" as used in this paragraph shall
mean the total amount payable to Design -Build Entity by City under the
Contract and any modification thereto, less any amount previously paid by City
to the Design -Build Entity and any other set offs pursuant to the Contract
Documents.
3. Permit City to complete the Project in any manner consistent with California
law and make available as work progresses sufficient funds to pay the cost of
completion of the Project, less the balance of the contract price, including other
costs and damages for which Surety may be liable. The term "balance of the
contract price" as used in this paragraph shall mean the total amount payable
to Design -Build Entity by City under the Contract and any modification thereto,
less any amount previously paid by City to the Design -Build Entity and any
other set offs pursuant to the Contract Documents.
Surety expressly agrees that City may reject any contractor or subcontractor which may be
proposed by Surety in fulfillment of its obligations in the event of default by the Design -Build Entity.
Surety shall not utilize Design -Build Entity in completing the Project nor shall Surety accept a bid
from Design -Build Entity for completion of the Project if City, when declaring the Design -Build
Entity in default, notifies Surety of City's objection to Design -Build Entity's further participation in
the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Contract to be performed thereunder, shall in any way
affect its obligations on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of Contract. including but not limited to the provisions
of Sections 2819 and 2845 of the California Civil Code.
[Remainder of Page Left Intentionally Blank.]
ATTACHMENT 2
Spec. No. 8 00 42 53 — DESIGN -BUILD CONTRACT
72500.00001 \32100499.1
CONTRACT NO. C39110
IN WITNESS WHEREOF, we have hereunto set our hands and seals this
,20
DESIGN -BUILD ENTITY/PRINCIPAL
Name
LIM
SURETY:
By:
Attorney -In -Fact
day of
Signatures of those signing for the Design -Build Entity and Surety must be notarized and evidence
of corporate authority attached.
The rate of premium on this bond is per thousand. The total amount of premium
charges, $
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from
(Telephone number of Surety and
Agent or
of process in California)
Representative
END OF PERFORMANCE BOND
for
above)
service
ATTACHMENT 2
Spec. No. 9 00 42 53 — DESIGN -BUILD CONTRACT
72500.00001\32100499.1
CONTRACT NO. C39110
ATTACHMENT 3
PAYMENT (MATERIAL & LABOR) BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Desert (hereinafter referred to as "City") has awarded to ABM
Electrical and Liahtina Solutions. Inc., (hereinafter referred to as the "Design -Build Entity') an
agreement for Electric Vehicle Charaina Station at Citv Hall (hereinafter referred to as the
"Project').
WHEREAS, the work to be performed by the Design -Build Entity is more particularly set forth in
the Contract Documents for the Project dated Auqust 22, 2019, (hereinafter referred to as
"Contract Documents"), the terms and conditions of which are expressly incorporated herein by
reference; and
WHEREAS, Design -Build Entity is required to furnish a bond in connection with the contract
described above; providing that if Design -Build Entity or any of its subcontractors shall fail to pay
for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about
the performance of the work contracted to be done, or for any work or labor done thereon of any
kind, or for amounts due under the Unemployment Insurance Code or for any amounts required
to be deducted, withheld, and paid over to the Employment Development Department from the
wages of employees of Design -Build Entity and its subcontractors with respect to such work or
labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW, THEREFORE, we, ABM Electrical and Liahtina Solutions. Inc., the undersigned
Design -Build Entity and as Surety, a
corporation organized and duly authorized to transact business under the laws of the State of
California, are held and firmly bound unto City in the sum of Two Hundred. Fortv-Four
Thousand. Two Hundred Twentv-Five Dollars ($244,225), lawful money of the United States
of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs,
executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if Design -Build Entity, his or its
subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of
the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or
other supplies, used in, upon, for or about the performance of the work contracted to be done, or
for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance
Code with respect to work or labor performed under the contract, or for any amounts required to
be deducted, withheld, and paid over to the Employment Development Department or Franchise
Tax Board from the wages of employees of the contractor and his subcontractors pursuant to
Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety
or Sureties will pay for the same, in an amount not exceeding the sum herein above specified,
and also, in case suit is brought upon this bond, all litigation expenses incurred by City in such
suit, including reasonable attorneys' fees, court costs, expert witness fees and investigation
expenses.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code
so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
ATTACHMENT 3
Spec. No. 10 00 42 53 — DESIGN -BUILD CONTRACT
72500.00001 \32100499.1
CONTRACT NO. C39110
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released
from the obligation of this bond by any change, extension of time for performance, addition,
alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining
or relating to any scheme or work of improvement herein above described, or pertaining or relating
to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of
any terms of payment or extension of the time for any payment pertaining or relating to any
scheme or work of improvement herein above described, nor by any rescission or attempted
rescission or attempted rescission of the contract, agreement or bond, nor by any conditions
precedent or subsequent in the bond attempting to limit the right of recovery of claimants
otherwise entitled to recover under any such contract or agreement or under the bond, nor by any
fraud practiced by any person other than the claimant seeking to recover on the bond and that
this bond be construed most strongly against the Surety and in favor of all persons for whose
benefit such bond is given, and under no circumstances shall Surety be released from liability to
those for whose benefit such bond has been given, by reason of any breach of contract between
City and original contractor or on the part of any obligee named in such bond, but the sole
conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil
Code, and has not been paid the full amount of his claim.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Contract to be performed thereunder, shall in any way
affect its obligations on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of Contract, including but not limited to the provisions
of Sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for
all purposes be deemed an original thereof, have been duly executed by the Design -Build Entity
and Surety above named, on the day of 20 the name
and corporate seal of each corporate party being hereto affixed and these presents duly signed
by its undersigned representative pursuant to authority of its governing body.
(Corporate Seal of Design -Build Entity,
if corporation) Design -Build Entity/Principal
(Seal of Surety)
By
(Signature of Design -Build Entity)
By
Attorney in Fact
Surety
Signatures of those signing for the Design -Build Entity and Surety must be notarized and evidence
of corporate authority attached. A Power -of -Attorney authorizing the person signing on behalf of
the Surety to do so must be attached hereto.
ATTACHMENT 3
Spec. No. 11 00 42 53 — DESIGN -BUILD CONTRACT
72500.00001\32100499.1
CONTRACT NO. C39110
END OF PAYMENT (LABOR AND MATERIALS) BOND
ATTACHMENT 3
Spec. No. 2 00 42 53 — DESIGN -BUILD CONTRACT
72500.00001\32100499.1
CONTRACT NO. C39110
00 72 53 -- GENERAL CONDITIONS
ARTICLE 1 -DEFINITIONS AND TERMINOLOGY
1.1 Defined Terms.
A. Wherever used in the Contract Documents and printed with initial capital letters, the
terms listed below will have the meanings indicated which are applicable to both the
singular and plural thereof. In addition to terms specifically defined below, terms with
initial capital letters in the Contract Documents include references to identified articles
and paragraphs, and the titles of other documents or forms.
1. Act of God -- Act of God is an earthquake of magnitude 3.5 or higher on the Richter
Scale or a tidal wave.
2. Additional Work — New or unforeseen work will be classified as "Additional Work"
when City's Representative determines that it is not covered by the Contract.
3. Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations,
permits, and licenses of any kind, issued by local, state or federal governmental
authorities or private authorities with jurisdiction (including utilities), to the extent
they apply to the Work.
4. Application for Pavment -- The form acceptable to City's Representative which is
to be used by the Design -Build Entity during the course of the Work in requesting
progress or final payments and which is to be accompanied by such supporting
documentation as is required by the Contract Documents.
5. Architect of Record or Enaineer of Record ("A/E") -- The individual, partnership,
corporation, joint venture, or other legal entity named as such in Section 00 73 13,
Article 1.1 or any succeeding entity designated by City.
6. Bridaina Documents -- Includes, but is not limited to, the portions of the Contract
Documents which constitute an outline of design requirements, Work, Project
Program, Performance Specifications and schematic drawings.
7. Certificate for Pavment --The form signed by City's Representative attesting to the
Design -Build Entity's right to receive payment for certain completed portions of the
Work on the Project in accordance with Article 12.
8. Chanae Order ("CO") -- A document that authorizes an addition, deletion, or
revision in the Work or an adjustment in the Guaranteed Maximum Price or the
Project Completion Date, issued on or after the Effective Date of the Contract, in
accordance with the Contract Documents and in the form contained in the Contract
Documents.
9. Chanae Order Request ("COR") -- A request made by the Design -Build Entity for
an adjustment in the Guaranteed Maximum Price and/or Project Completion Date
as the result of a Design -Build Entity -claimed change to the Work. This term may
Spec. No.
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00 72 53 -- GENERAL CONDITIONS
CONTRACT NO. C39110
also be referred to as a Change Order Proposal ("COP"), or Request for Change
("RFC").
10. Citv's Representative -- The individual or entity as identified in the Special
Conditions to act as City's Representative.
11. Claim -- A demand or assertion by City or Design -Build Entity seeking an
adjustment of the Guaranteed Maximum Price or Project Completion Date, or both,
or other relief with respect to the terms of the Contract. A demand for money or
services by a third party is not a Claim.
12. Construction Documents -- The plans and technical specifications prepared by the
Design -Build Entity for the Project and approved by City. The Construction
Documents shall set forth in detail all items necessary to complete the construction
(other than such details customarily provided by others during construction) of the
Project in accordance with the Contract Documents. Following commencement of
the Construction Phase, Construction Documents become part of the Contract
Documents upon their completion and approval by City. All amendments and
modifications to the Construction Documents must be approved by City in writing.
13. Construction Documents Phase — The second of three phases of the Work and will
commence with the issuance of the approval of the Schematic Design Phase.
14. Construction Phase -- The third phase of the Work and will commence upon final
approval of the Construction Documents by City.
15. Construction Work -- That portion of the Work on the Project consisting of the
provision of labor, materials, furnishings, equipment and services in connection
with the construction of the Project as set forth in the Contract Documents.
16. Contract -- The entire integrated written agreement between City and Design -Build
Entity concerning the Work. "Contract" may be used interchangeably with
"Agreement" in the Contract Documents. The Contract supersedes prior
negotiations, representations, or agreements, whether written or oral, and includes
all Contract Documents.
17. Contract Documents -- The documents listed in Section 00 42 53, Article 1.1.G.
Some documents provided by City, including but not limited to reports and
drawings of subsurface and physical conditions are not Contract Documents.
18. Contract Times -- The number of days or the dates stated in the Contract
Documents and Master Project Schedule to: achieve defined Milestones, if any,
and to complete the Work so that it is ready for final payment.
19. Cost Breakdown -- A Cost Breakdown/Schedule of Values for each phase of Work
shall be submitted by the Design -Build Entity as required pursuant to Article 12
herein and are incorporated into the Contract Documents by reference.
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CONTRACT NO. C39110
20. Daily Rate — The Reverse Liquidated Damages amount stipulated in the Contract
Documents as full compensation to the Design -Build Entity due to City's
unreasonable delay to the Project that was not contemplated by the parties.
21. Day -- A calendar day of 24 hours measured from midnight to the next midnight.
22. Defective Work -- Work that is unsatisfactory, faulty, or deficient; or that does not
conform to the Contract Documents; or that does not meet the requirements of any
inspection, reference standard, test, or approval referenced in the Contract
Documents.
23. Demobilization — The complete dismantling and removal by the Design -Build Entity
of all of the Design -Build Entity's temporary facilities, equipment, and personnel at
the Site.
24. Design -Build Entitv -- The individual or entity with which City has contracted for
performance of the Work.
25. Design -Build Entitv Representative -- The person or firm identified as the primary
contact person and representative of the Design -Build Entity as designated in the
Contract and who shall not be changed without prior written consent of City.
26. Design Materials -- Any and all documents, shop drawings, electronic information,
including computer programs and computer generated materials, data, plans,
drawings, sketches, illustrations, specifications, descriptions, models and other
information developed, prepared, furnished, delivered or required to be delivered
by, or for, the Design -Build Entity: (1) to City under the Contract Documents or; (2)
developed or prepared by or for the Design -Build Entity specifically to discharge
its duties under the Contract Documents.
27. Design Professional -- The individuals or entities who will provide the Design -Build
Entity with the required architectural, engineering, and other professional services
required for the coordinated design of the Project and the administration of
construction.
28. Design Work -- The portion of the Work on the Project consisting of the Design
services and design deliverables required to be provided in connection with the
Design of the Project as set forth in the Contract Documents.
29. Drawings -- The graphic and pictorial portions of the Contract Documents showing
the design, location, and dimensions of the Work to be done on the Project,
generally including plans, elevations, sections, details, schedules, and diagrams
prepared as part of the Design Materials. The Drawings are listed in the List of
Drawings.
30. Effective Date of the Contract — The date indicated in the Contract on which it
becomes effective, but if no such date is indicated, it means the date on which the
Contract is signed and delivered by the last of the two parties to sign and deliver.
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3 00 72 53 -- GENERAL CONDITIONS
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CONTRACT NO. C39110
31. Equipment Manufacturer -- Any Separate Contractor that fabricates and/or
supplies any of City's provided equipment which is installed in the Project by the
Design -Build Entity.
32. Governmental Approvals -- Those governmental actions required to be obtained
by City and necessary for the completion of the Project.
33. Guaranteed Maximum Price ("GMP") -- The guaranteed maximum price City will
pay for the completion of all Work described in the Contract Documents. The GMP
is set forth in Section 00 42 53, Article 1.1 and further described in the cost
proposal submitted by the Design -Build Entity.
34. Hazardous Environmental Condition — The presence at the Site of Hazardous
Waste.
35. Hazardous Waste — Has the same meaning provided in Section 104 of the Solid
Waste Disposal Act (42 U.S.C. § 6903) as amended from time to time or, as
defined in Section 25117 of the Health and Safety Code, that is required to be
removed to a class I, class II, or class I II disposal site in accordance with provisions
of existing law, whichever is more restrictive.
36. Holidays -- The Holidays occur on:
New Year's Day - January 1
Martin Luther King Jr. Day — Third Monday of January
President's Day — Third Monday of February
Memorial Day - Last Monday in May
Independence Day - July 4
Labor Day - First Monday in September
Veteran's Day - November 11
Thanksgiving Day - Fourth Thursday in November
Friday after Thanksgiving
Christmas Day - December 25
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday
are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following
Monday are both Holidays.
37. Liens — Charges, security interests, or encumbrances upon Project funds, or
personal property, including without limitation Stop Payment Notices.
38. Master Proiect Schedule -- The overall schedule for completion of the Project as
prepared by City and included in the RFP.
39. Milestones — A principal event specified in the Contract Documents associated
with a required completion date or time prior to Completion of all the Work. Failure
to achieve Milestones may result in Liquidated Damages as described in the
Contract Documents.
Spec. No.
00 72 53 -- GENERAL CONDITIONS
72500.00001\32100500.2
CONTRACT NO. C39110
40. Notice of Award — The written notice by City to the Design -Build Entity stating that
upon timely compliance by the Design -Build Entity with the conditions precedent
listed therein, City will sign and deliver the Contract.
41. Notice of Completion — The form which may be executed by City and recorded by
the county where the Project is located constituting final acceptance of the Project.
42. Notice to Proceed -- A written notice given by City to the Design -Build Entity fixing
the date on which the Design -Build Entity may proceed with the Work and when
Contract Times will commence to run.
43. Partial Utilization — Use by City of a substantially completed part of the Work prior
to Completion of all the Work.
44. Performance Specifications -- That part of the Contract Documents consisting of
written requirements for materials, equipment, systems, standards and
workmanship as applied to the Work, and certain administrative requirements and
procedural matters applicable thereto included within the Bridging Documents.
45. Proiect -- The total design and construction of which the Work performed under
the Contract Documents may be the whole, or a part, and which may include
separate design or construction work performed by City or by Separate
Contractors for the Project.
46. Proiect Completion Date -- The date by which the Design -Build Entity agrees that
all Work described in the Contract Documents shall be completed. The Project
Completion Date is set forth in Section 00 42 53, Article 1.1.
47. Proiect Schedule -- The graphical representation of a practical plan to complete
the Work on the Project within the Project Completion Date and other Contract
Times as a part of the Master Project Schedule. The detailed requirements for the
Project Schedule are stated in Article 6.
48. Proposal -- The proposal submitted by the Design -Build Entity in response to the
Request for Proposal for this Project.
49. Reauest for Proposal ("RFP") -- The request for proposal issued by City for the
Project and includes all documents, exhibits, attachments, and addenda thereto.
50. Samples -- Physical examples of materials, equipment, or workmanship that are
representative of some portion of the Work and which establish the standards by
which such portion of the Work will be judged.
51. Schematic Design Phase -- The first of three phases of the Work. The scope of the
Schematic Design Phase is further defined in the RFP.
52. Separate Contractor -- A person, or firm, under separate contract with City
performing other work at the Project site which may affect the Work.
Spec. No.
00 72 53 -- GENERAL CONDITIONS
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CONTRACT NO. C39110
53. Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data
or information which are specifically prepared or assembled by or for Design -Build
Entity and submitted by Design -Build Entity to illustrate some portion of the Work.
54. Site -- Lands or areas indicated in the Contract Documents as being furnished by
City upon which the Work is to be performed, including rights -of -way and
easements for access thereto, and such other lands furnished by City which are
designated for the use of Design -Build Entity.
55. Stor) Pavment Notice -- A written notice as defined in Civil Code section 8044.
56. Subcontractor — An individual or entity that has a contract with the Design -Build
Entity or with a Subcontractor of the Design -Build Entity to perform a portion of the
Work on the Project. Unless otherwise specifically provided, the term
Subcontractor includes Subcontractors of all tiers.
57. Submittal - Written or graphic information and physical samples prepared and
supplied by the Design -Build Entity demonstrating various portions of the Work.
58. Supplier -- A manufacturer, fabricator, supplier, distributor, material man, or vendor
having a direct contract with Design -Build Entity or with any Subcontractor to
furnish materials or equipment used in the performance of the Work or to be
incorporated in the Work.
59. Technical Specifications — All documents developed by the Design -Build Entity
during the Schematic Design Phase and which are ready for final construction.
60. Tier -- The contractual level of a Subcontractor or supplier or consultant with
respect to the Design -Build Entity. For example, a first tier Subcontractor is under
subcontract with the Design -Build Entity, a second tier Subcontractor is under
subcontract with a first tier Subcontractor, and so forth.
61. Unexcusable Delav -- Any delay other than an Excusable Delay, as described in
Articles 9 and 10 of these General Conditions, that does not entitle the Design -
Build Entity to an adjustment of the Guaranteed Maximum Price and does not
entitle the Design -Build Entity to an adjustment of the Project Completion Date.
62. Warranty A written guarantee provided to City by the Design -Build Entity that the
Work remain free of defects and suitable for its intended use for the period required
by the Contract Documents or the longest period permitted by the law of this State,
whichever is longer.
63. Work -- The entire design and construction, or the various separately identifiable
parts thereof, required to be provided under the Contract Documents. Work
includes and is the result of performing or providing all labor, services, and
documentation necessary to produce such design and construction, and
furnishing, installing, and incorporating all materials and equipment into such
design and construction, all as required by the Contract Documents.
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00 72 53 -- GENERAL CONDITIONS
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CONTRACT NO. C39110
1.2 Terminoloay.
A. The words and terms below are not defined but, when used in the Contract
Documents, have the indicated meaning.
B. Furnish. Install. Perform. Provide.
The word "furnish," when used in connection with services, materials, or
equipment, shall mean to supply and deliver said services, materials, or equipment
to the Project site (or some other specified location) ready for use or installation
and in usable or operable condition.
2. The word "install," when used in connection with services, materials, or equipment,
shall mean to put into use or place in final position said services, materials, or
equipment complete and ready for intended use.
3. The words "perform" or "provide," when used in connection with services,
materials, or equipment, shall mean to furnish and install said services, materials,
or equipment complete and ready for intended use.
4. Regardless of whether "furnish," "install," "perform," or "provide" is used in
connection with services, materials, or equipment, an obligation of Design -Build
Entity is implied.
C. Unless stated otherwise in the Contract Documents, words or phrases that have a
well-known technical or construction industry or trade meaning are used in the
Contract Documents in accordance with such recognized meaning
ARTICLE 2 -PRELIMINARY MATTERS
2.1 Delivery of Contract Documents.
A. Within fifteen (15) Days after receipt of the Notice of Award and before City will execute
the Contract, the Design -Build Entity shall furnish and file with City a signed Contract
in duplicate and the necessary Performance Bond, Payment Bond, Certificates of
Insurance and Endorsements, Escrow Agreement (if used) and Tax Identification
Number, as well as any other documents specified in the Contract Documents.
2.2 Bonds.
A. Design -Build Entity shall submit the bonds on the forms provided with the Contract
Documents, duly executed by a responsible corporate surety admitted to transact
surety business in the State of California, as defined in Code of Civil Procedure section
995.120, and listed in the United States Department of the Treasury circular entitled
"Companies Holding Certificates of Authority as Acceptable Sureties on Federal
Bonds and as Acceptable Reinsuring Companies," authorized to do business in the
State of California and acceptable to City conditioned upon the faithful performance
by the Design -Build Entity of all requirements of the Contract Documents. Each of the
bonds shall be in a sum no less than one hundred percent (100%) of the Guaranteed
Maximum Price.
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CONTRACT NO. C39110
2.3 Evidence of Insurance.
A. Design -Build Entity shall obtain, at its sole cost and expense, all insurance required
by Article 5. Certificates of such insurance and copies of the insurance policies and
endorsements shall be delivered to City within fifteen (15) Days after receipt of the
Notice of Award and before execution of the agreement for construction by City.
2.4 Execution of Contract.
A. Upon receipt of the required Contract Documents, City will execute the Contract,
establishing the Effective Date of the Contract.
2.5 Commencement of Contract Times: Notice to Proceed.
A. City will not issue a Notice to Proceed until after the Effective Date of the Contract.
B. Work shall commence within fifteen (15) Days of the date stated in City's Notice to
Proceed.
C. The Contract Times begin to run on the Day the Design -Build Entity commences Work.
If the Design -Build Entity fails to commence Work as required herein, the Contract
Times commence on the fifteenth (15th) Day after the date stated in the Notice to
Proceed.
D. No Work shall be done at the Site prior to the date on which the Contract Times
commence to run.
E. Nothing herein shall affect the Project Completion Date.
2.6 Copies of Documents.
A. City will furnish to Design -Build Entity one (1) copy of the Bridging Documents.
Additional copies will be furnished upon request at the cost of reproduction.
2.7 Preconstruction Conference: Desianation of Authorized Representatives.
A. Before any Work at the Project site is started, a conference attended by City, Design -
Build Entity, City's Representative, and others as appropriate will be held to establish
a working understanding among the parties as to the Work and to discuss the
schedules referred to herein, procedures for handling Shop Drawings and other
submittals, processing Applications for Payment, and maintaining required records.
B. At this conference City and Design -Build Entity each shall designate, in writing, a
specific individual to act as its authorized representative with respect to the services
and responsibilities under the Contract. Such individuals shall have the authority to
transmit instructions, receive information, render decisions relative to the Contract,
and otherwise act on behalf of each respective party.
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2.8 Initial Acceptance of Schedules.
A. At least ten (10) Days before submission of the first Application for Payment, a
conference attended by Design -Build Entity, City's Representative, and others as
appropriate will be held to review for acceptability to City's Representative the
schedules submitted, as required by the Contract Documents. Design -Build Entity
shall have an additional ten (10) Days to make corrections and adjustments and to
complete and resubmit the schedules. No progress payment shall be made to Design -
Build Entity until acceptable schedules are submitted to City's Representative.
B. Acceptance of the schedules by City's Representative will not impose on responsibility
for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with
the Contract Documents. Acceptance will not interfere with or relieve Design -Build
Entity from Design -Build Entity's full responsibility therefor.
2.9 Subcontractor Mobilization Meetinq.
Prior to the start of each major Subcontractor's Site Work, the Design -Build Entity, the
involved Subcontractor, and City's Representative shall attend a pre -start meeting to
discuss the schedule, coordination, procedures, and other administrative issues.
2.10 Proiect Sianaae.
City will permit a single project sign, which shall be subject to City's prior and sole
discretion and approval, as to all matters including, without limitation, size, location,
material, colors, style and size of printing, logos and trademarks (if any), text, and selection
of names to be displayed.
ARTICLE 3 -CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
3.1 Intent.
A. The Contract Documents are complementary; what is required by one is as binding as
if required by all.
B. It is the intent of the Contract Documents to describe a functionally complete Project
(or part thereof) to be designed and constructed in accordance with the Contract
Documents. Any labor, documentation, services, materials, or equipment that
reasonably may be inferred from the Contract Documents or from prevailing custom
or trade usage as being required to produce the indicated result will be provided
whether or not specifically called for, at no additional cost to City.
C. Clarifications and interpretations of the Contract Documents shall be issued by City's
Representative as provided in these General Conditions.
D. If utilities to equipment/fixtures are not shown but are necessary to operate the
equipment/fixtures, the utilities service installation is considered to be part of the Work.
The implied Work will conform to the appropriate sections of the Contract Documents.
Spec. No.
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CONTRACT NO. C39110
E. Organization of the Contract Documents into divisions, sections, and articles, and
arrangement of drawings shall not control the Design -Build Entity in dividing Work
among Subcontractors or in establishing the extent of Work to be performed by any
trade.
3.2 Reference Standards.
A. Standards. Specifications. Codes. Laws. and Regulations.
Reference to federal specifications, federal standards, other standards,
specifications, manuals, or codes of any technical society, organization, or
association, or to Applicable Laws, whether such reference be specific or by
implication, shall mean the standard, specification, manual, code, or Applicable
Laws in effect at the time of opening of proposals (or on the Effective Date of the
Contract if there were no proposals), except as may be otherwise specifically
stated in the Contract Documents.
2. No provision of any such standard, specification, manual, or code, or any
instruction of a supplier, shall be effective to change the duties or responsibilities
of City, Design -Build Entity, or City's Representative, or any of their
Subcontractors, consultants, agents, or employees, from those set forth in the
Contract Documents. No such provision or instruction shall be effective to assign
to City or City's Representative, or any of their officers, directors, members,
partners, employees, agents, consultants, or subcontractors, any duty or authority
to supervise or direct the performance of the Work or any duty or authority to
undertake responsibility inconsistent with the provisions of the Contract
Documents.
3.3 Order of Precedence.
The intent of the Contract Documents is to include all necessary criteria to establish the
scope and quality for completion of the Work on the Project by the Design -Build Entity.
The Contract Documents are complementary and what is required by one shall be as
binding as if required by all. Performance by the Design -Build Entity shall be required to
the extent consistent with, and reasonably inferable from, the Contract Documents.
1. Except as may be otherwise specifically stated in the Contract Documents, the
provisions of the Contract Documents shall take precedence in resolving any
conflict, error, ambiguity, or discrepancy between the provisions of the Contract
Documents and:
a. the provisions of any standard, specification, manual, or code, or the instruction
of any Supplier (whether or not specifically incorporated by reference in the
Contract Documents); or
b. the provisions of any Applicable Laws (unless such an interpretation of the
provisions of the Contract Documents would result in violation of such
Applicable Law).
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A. In resolving conflicts among any of the Contract Documents, the order of precedence
shall be as follows:
1. Permits from other agencies as may be required by law;
2. Change Orders or Pending Change Orders, most recent first;
3. Attachment 5 to the Contract: Enhancements/Additional Scope of Work Terms and
Conditions and Attachment 6 to the Contract: Exclusions/Clarifications of Scope
by the Design -Build Entity;
4. Design -Build Contract;
5. Special Conditions;
6. General Requirements;
7. General Conditions;
8. RFP and all addenda, attachments and appendices;
9. Design -Build Entity Proposal in response to RFP;
10. Technical Specifications prepared by Design -Build Entity;
11. Drawings prepared by Design -Build Entity;
12. Request for Qualifications and all addenda, attachments and appendices; and
13. Design -Build Entity Statement of Qualifications in response to Request for
Qualifications.
B. With reference to the Drawings the order of precedence shall be as follows:
1. Figures govern over scaled dimensions;
2. Detail drawings govern over general drawings;
3. Change Order drawings govern over Drawings;
4. Drawings govern over standard drawings.
C. Notwithstanding the orders of precedence established above, in the event of conflicts,
the higher standard, higher quality and most expensive shall always apply.
3.4 Amendina and Supplementinq Contract Documents.
A. The Contract Documents may be amended to provide for additions, deletions, and
revisions in the Work or to modify the terms and conditions thereof only by a Change
Order.
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3.5 Interpretation and Use of Contract Documents.
A. City and the Design -Build Entity acknowledge that the Contract Documents may differ
in some respect(s) from the other documents included in the RFP upon which the
Design -Build Entity based its Proposal. Prior to the commencement of construction
on the Project, the parties shall confirm, in writing, the final form of the Contract
Documents that are to be utilized. Specifically, once approved by City, the
Construction Documents become a part of the Contract Documents and define the
entire scope of work, so long as such documents incorporate all minimum
requirements of the design criteria and performance specifications set forth in the RFP
as may be amended by the Contract Documents. The Design -Build Entity shall certify
that the Construction Documents are in full compliance with the Contract Documents,
except as noted.
B. As described in the RFP, the construction materials, items, supplies, etc., including
the quality and/or quantity of such items, specified in the Design -Build Entity's proposal
for the design and construction of the Project represent a substantive basis which City
factored into its determination of the "best value" for award of the Contract. Any
change in such materials, items, supplies, etc. from those specified in the Design -Build
Entity's proposal (and subsequently incorporated into the Contract Documents) during
the design and construction of the Project requires the express written authorization
of City pursuant to Article 9.
C. Organization of the Performance Specifications into various subdivisions and the
arrangement of the Drawings shall not control the Design -Build Entity in dividing
portions of the Work necessary for the Project among Subcontractors or in establishing
the extent of Work to be performed by any trade.
D. Unless otherwise stated in the Contract Documents, technical words and
abbreviations contained in the Contract Documents are used in accordance with
commonly understood design professional and construction industry meanings;
nontechnical words and abbreviations are used in accordance with their commonly
understood meanings.
E. The Contract Documents may omit modifying words such as "all" and "any," and
articles such as "the" and "an," but the fact that a modifier or an article is absent from
one statement and appears in another is not intended to affect the interpretation of
either statement. The use of the word "including," when following any general
statement, shall not be construed to limit such statement to specific items or matters
set forth immediately following such word or to similar items or matters, whether or not
non limiting language (such as "without limitation," "but not limited to," or words of
similar import) is used with reference thereto, but rather shall be deemed to refer to all
other items or matters that could reasonably fall within the broadest possible scope of
such general statement.
F. Whenever the context so requires, the use of the singular number shall be deemed to
include the plural and vice versa. Each gender shall be deemed to include any other
gender, and each shall include a corporation, partnership, trust, or other legal entity,
whenever the context so requires. The captions and headings of the various
subdivisions of the Contract Documents are intended only for reference and
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convenience and in no way define, limit, or prescribe the scope or intent of the Contract
Documents or any subdivision thereof.
G. Each and every provision of law required by law to be inserted in the Contract
Documents shall be deemed to be inserted herein, and the Contract Documents shall
be read and enforced as though it were included herein, and if through mistake or
otherwise any such provision is not inserted, or is not correctly inserted, then upon
application of either party the Contract shall be amended in writing to make such
insertion or correction.
H. Before commencing any Work on the Project, the Design -Build Entity shall check and
review the Contract Documents, including the Construction Documents, for
conformance and compliance with all laws, ordinances, codes, rules and regulations
of all governmental authorities and public utilities affecting the construction and
operation of the physical plant of the Project, all quasi -governmental and other
regulations affecting the construction and operation of the physical plant of the Project,
and other special requirements, if any, designated in the Contract. In the event the
Design -Build Entity observes any violation of any law, ordinance, code, rule or
regulation, or inconsistency with any such restrictions or special requirements of the
Contract, the Design -Build Entity shall immediately notify City's Representative in
writing of the same and shall cause to be corrected any such violation or inconsistency
in the manner provided hereunder. The Design -Build Entity shall be solely liable for
any such violation, inconsistency or special requirement, if Design -Build Entity fails to
conduct such review or notification to City.
Before commencing any Work on the Project, the Design -Build Entity shall carefully
examine all Performance Specifications, the Contract, the Contract Documents and
other information given to the Design -Build Entity as to Project requirements. The
Design -Build Entity shall immediately notify City's Representative of any perceived or
alleged error, inconsistency, ambiguity, or lack of detail or explanation in such
documents in writing. Neither the Design -Build Entity nor any Subcontractor shall take
advantage of any apparent error or omission which may be found in the Performance
Specifications, the Contract, the Contract Documents or other information given to
Design -Build Entity. If the Design -Build Entity or its Subcontractors, material or
equipment suppliers, or any of their officers, agents, and employees performs, permits,
or causes the performance of any Work under the Contract, which it knows or should
have known to be in error, inconsistent, or ambiguous, or not sufficiently detailed or
explained, the Design -Build Entity shall bear any and all costs arising therefrom
including, without limitation, the cost of correction thereof without increase or
adjustment to the Guaranteed Maximum Price or the Project Completion Date. In no
case shall any Subcontractor proceed with Work if uncertain without the Design -Build
Entity's written direction and/or approval.
3.6 Reuse of Documents.
A. Design -Build Entity and any Subcontractor shall not:
1. have or acquire any title to or Ownership rights in any of the Drawings, Technical
Specifications, or other documents (or copies of any thereof) prepared by or
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CONTRACT NO. C39110
bearing the seal of the A/E or its consultants, including electronic media editions;
or
2. reuse of any such Drawings, Technical Specifications, other documents, or copies
thereof on extensions of the Project or any other project without written consent of
City and A/E and specific written verification or adaptation by the A/E.
B. The prohibitions of this Article 3.6 will survive final payment, or termination of the
Contract. Nothing herein shall preclude Design -Build Entity from retaining copies of
the Contract Documents for record purposes.
3.7 Electronic Data.
A. Unless otherwise stated in the Special Conditions, the data furnished by City or City's
Representative to Design -Build Entity, or by Design -Build Entity to City or City's
Representative, that may be relied upon are limited to the printed copies (also known
as hard copies). Files in electronic media format of text, data, graphics, or other types
are furnished only for the convenience of the receiving party. Any conclusion or
information obtained or derived from such electronic files will be at the user's sole risk.
If there is a discrepancy between the electronic files and the hard copies, the hard
copies govern.
B. Because data stored in electronic media format can deteriorate or be modified
inadvertently or otherwise without authorization of the data's creator, the party
receiving electronic files agrees that it will perform acceptance tests or procedures
within sixty (60) Days, after which the receiving party shall be deemed to have
accepted the data thus transferred. Any errors detected within the 60-Day acceptance
period will be corrected by the transferring party.
C. When transferring documents in electronic media format, the transferring party makes
no representations as to long term compatibility, usability, or readability of documents
resulting from the use of software application packages, operating systems, or
computer hardware differing from those used by the data's creator.
3.8 Ownership and Use of Construction Documents.
A. The Construction Documents, and all copies thereof, furnished to, or provided by, the
Design -Build Entity are the property of City. City and the Design -Build Entity explicitly
agree that all materials and documents developed in the performance of this Contract
are the property of City pursuant to the requirements of City. City shall have unlimited
rights, for the benefit of City, in all drawings, designs, technical specifications, notes
and any other documentation and other Work developed in the performance of this
Contract for the Project, including the right to re -use details of the Design on any other
City Work at no additional cost to City. The Design -Build Entity agrees to, and hereby
does, grant to City a royalty free license to all such data that the Design -Build Entity
may cover by copyright and to all designs as to which the Design -Build Entity may
assert any right or establish any claim to under the patent or copyright laws. The
Design -Build Entity, for a period up to five (5) years from the date of Completion of the
Project, agrees to furnish and to provide access to the originals or copies of all such
materials immediately upon the written request of City. Any use or reuse by City of the
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Construction Documents on any project other than this Project without employing the
services of the Design -Build Entity shall be at City's own risk with respect to third
parties. If City uses or re -uses the Construction Documents on any project other than
this Project, it shall remove the A/E's seal from the Construction Documents and hold
harmless Design -Build Entity, A/E, and their officers, directors, agents and employees
from claims arising out of the use or re -use of the Construction Documents on such
other project. Design -Build Entity shall not be responsible or liable for any revisions
to the Construction Documents made by any party other than the Design -Build Entity,
a party for which the Design -Build Entity is legally responsible or liable, or anyone
approved by the Design -Build Entity.
3.9 Administration of the Contract by City's Representative.
A. During the term of this Design -Build Contract, City's Representative shall have the
right to review the Design -Build Entity's Work at such intervals as deemed appropriate
by City's Representative. However, no actions taken during such review or site visit by
City's Representative shall relieve the Design -Build Entity of any of its obligations of
single point responsibility for the design and construction of this Project nor form the
basis for a Claim if such actions extend beyond the Project Completion Date.
B. City's Representative will not have control over, will not be in charge of, and will not
be responsible for design or construction means, methods, techniques, sequences, or
procedures, or for safety precautions and programs in connection with the Work on
the Project, since these are solely the Design -Build Entity's responsibility.
C. Except as otherwise provided in the Contract Documents or when direct
communications have been specifically authorized, City and the Design -Build Entity
shall communicate through City's Representative. Communications by the Design -
Build Entity with City's consultants and City's Representative's consultants shall be
through City's Representative. Communications by City and City's Representative with
Subcontractors will be through the Design -Build Entity. Communications by the
Design -Build Entity and Subcontractors with Separate Contractors shall be through
City's Representative. The Design -Build Entity shall not rely on oral or other non -
written communications.
D. Based on City's Representative's Project site visits, review of the Work, and
evaluations of the Design -Build Entity's Applications for Payment, City's
Representative will recommend amounts, if any, due the Design -Build Entity and will
issue Certificates for Payment in such amounts.
E. City's Representative will have the authority to reject Work on the Project, or any
portion thereof, which does not conform to the Contract Documents. City's
Representative will have the authority to stop Work on the Project, or any portion
thereof. Whenever City's Representative considers it necessary, or advisable, for
implementation of the intent of the Contract Documents, City's Representative will
have the authority to require additional inspection or testing of the Work on the Project
in accordance with the Contract Documents, whether or not such Work is fabricated,
installed, or completed. However, no authority of City's Representative conferred by
the Contract Documents nor any decision made in good faith either to exercise, or to
not exercise such authority, will give rise to a duty or responsibility of City or City's
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Representative to the Design -Build Entity, or any person or entity claiming under, or
through, the Design -Build Entity.
F. City's Representative will have the authority to conduct inspections in connection with
Beneficial Occupancy and to determine the dates of Completion; will receive for review
and approval any records, written warranties, and related documents required by the
Contract Documents and assembled by the Design -Build Entity; and will issue a final
Certificate for Payment upon the Design -Build Entity's compliance with the
requirements of the Contract Documents.
G. City's Representative will be, in the first instance, the interpreter of the requirements
of the Contract Documents and the judge of performance thereunder by the Design -
Build Entity. Should the Design -Build Entity discover any conflicts, omissions, or errors
in the Construction Documents or the Contract Documents; have any questions about
the interpretation or clarification of the Contract Documents; question whether Work is
within the scope of the Contract Documents; then, before proceeding with the Work
affected, the Design -Build Entity shall notify City's Representative in writing and
request interpretation, or clarification. City's Representative's response to questions
and requests for interpretations, clarifications, instructions, or decisions will be made
with reasonable promptness. Should the Design -Build Entity proceed with the Work
affected before receipt of a response from City's Representative, any portion of the
Work on the Project which is not done in accordance with City's Representative's
interpretations, clarifications, instructions, or decisions shall be removed or replaced
and the Design -Build Entity shall be responsible for all resultant losses.
H. City may at any time and from time to time, without prior notice to or approval of the
Design -Build Entity, replace City's Representative with a new City Representative.
Upon receipt of notice from City informing the Design -Build Entity of such replacement
and identifying the new City's Representative, the Design -Build Entity shall recognize
such person or firm as City's Representative for all purposes under the Contract
Documents.
ARTICLE 4 -AVAILABILITY AND OWNERSHIP OF LANDS AND MATERIALS;
HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS
4.1 Availability of Lands.
A. City shall furnish the Project site. City shall notify Design -Build Entity of any
encumbrances or restrictions not of general application but specifically related to use
of the Project site with which Design -Build Entity must comply in performing the Work.
City will obtain in a timely manner and pay for easements for permanent structures or
permanent changes in existing facilities.
B. Design -Build Entity shall provide for all additional lands and access thereto that may
be required for temporary construction facilities or storage of materials and equipment
at no additional cost to City.
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4.2 Ownership of Site Materials Found.
A. The title to water, soil, rock, gravel, sand, minerals, timber and any other materials
developed or obtained in the excavation or other operations of Design -Build Entity or
any of its Subcontractors in the performance of the Contract, and the right to use said
items in carrying out the Contract, or to dispose of same, is hereby expressly reserved
by City. Neither Design -Build Entity nor any of its Subcontractors nor any of their
representatives or employees shall have any right, title, or interest in said materials,
nor shall they assert or make any claim thereto. Design -Build Entity will, as determined
by City's Representative, be permitted to use in the Work without charge, any such
materials which meet the requirements of the Contract Documents, provided City shall
have the right to use or consume these materials without payment to a third party.
4.3 Hazardous Environmental Conditions at Site.
A. Reports and Drawinas. The Special Conditions identify those reports and drawings
known to City relating to Hazardous Environmental Conditions that have been
identified at the Site.
B. Limited Reliance by Design -Build Entitv on Technical Data Authorized. Design -Build
Entity may rely upon the accuracy of the "technical data" contained in such reports and
drawings but such reports and drawings are not Contract Documents. Such "technical
data" is identified in the Special Conditions. Design -Build Entity shall make its own
interpretation of the "technical data" and shall be solely responsible for any such
interpretations. Except for reliance on the accuracy of such "technical data," Design -
Build Entity may not rely upon or make any claim against City or City's Representative,
or any of their officers, directors, members, partners, employees, agents, consultants,
or subcontractors, with respect to:
1. the completeness of such reports and drawings for Design -Build Entity's purposes,
including without limitation any aspects of the means, methods, techniques,
sequences, and procedures of design or construction to be employed by Design -
Build Entity and safety precautions and programs incident thereto; or
2. other data, interpretations, opinions and information contained in such reports or
shown or indicated in such drawings; or
3. any Design -Build Entity interpretation of or conclusion drawn from any "technical
data" or any such other data, interpretations, opinions or information.
C. Design -Build Entity shall not be responsible for any Hazardous Environmental
Condition uncovered or revealed at the Site which was not shown or indicated in the
Construction Documents or identified in the Contract Documents to be within the scope
of the Work. Design -Build Entity shall be responsible for a Hazardous Environmental
Condition created with any materials brought to the Site by Design -Build Entity,
Subcontractors, Suppliers, or anyone else for whom Design -Build Entity is
responsible.
D. If Design -Build Entity encounters a Hazardous Environmental Condition or if Design -
Build Entity or anyone for whom Design -Build Entity is responsible creates a
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Hazardous Environmental Condition, Design -Build Entity shall immediately: (i) secure
or otherwise isolate such condition; (ii) stop all Work in connection with such condition
and in any area affected thereby (except in an Emergency); and (iii) notify City and
City's Representative (and promptly thereafter confirm such notice in writing). City
shall promptly consult with City's Representative concerning the necessity for City to
retain a qualified expert to evaluate such condition or take corrective action, if any.
E. Design -Build Entity shall not be required to resume Work in connection with such
condition or in any affected area until after City has obtained any required permits
related thereto and delivered written notice to Design -Build Entity: (i) specifying that
such condition and any affected area is or has been rendered safe for the resumption
of Work; or (ii) specifying any special conditions under which such Work may be
resumed safely.
F. If after receipt of such written notice Design -Build Entity does not agree to resume
such Work based on a reasonable belief it is unsafe, or does not agree to resume such
Work under such special conditions, then City may order the portion of the Project that
is in the area affected by such condition to be deleted from the Work in accordance
with the Contract Documents. City may have such deleted portion of the Project
performed by City's own forces or others.
G. To the fullest extent permitted by Applicable Laws, Design -Build Entity shall indemnify,
defend, and hold harmless City and City's Representative, and the officers, directors,
members, partners, employees, agents, consultants, and subcontractors of each and
any of them, from and against all claims, costs, losses, and damages (including but
not limited to all fees and charges of engineers, architects, attorneys, and other
professionals and all court or arbitration or other dispute resolution costs) arising out
of or relating to a Hazardous Environmental Condition created, in whole or in part, by
Design -Build Entity or by anyone for whom Design -Build Entity is responsible. Nothing
in this Section shall obligate Design -Build Entity to indemnify any individual or entity
from and against the consequences of that individual's or entity's own negligence.
4.4 Protection and Restoration of Existino ImDrovements and Reference Points.
A. Design -Build Entity shall be responsible for confirming whether any historical
stamps/impressions or survey monuments are located on existing sidewalks or curbs,
which may be affected by the Work or construction activities. Design -Build Entity shall
be solely responsible for ensuring that the design provides for the protection of existing
improvements.
B. Design -Build Entity shall be responsible for laying out the Work, shall protect and
preserve the established reference points and property monuments, and shall make
no changes or relocations without the prior written approval of City. Design -Build Entity
shall report to City's Representative whenever any reference point or property
monument is lost or destroyed or requires relocation because of necessary changes
in grades or locations, and shall be responsible for the accurate replacement or
relocation of such reference points or property monuments by professionally qualified
personnel.
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ARTICLE 5 -BONDS AND INSURANCE
5.1 Without limiting Design -Build Entity's indemnification of the City of Palm Desert,
and prior to commencement of Work, Design -Build Entity shall obtain, provide and
maintain at its own expense during the term of this Contract, policies of insurance of the
type and amounts described in this Article and in a form satisfactory to the City.
5.2 General Liability Insurance. Design -Build Entity shall maintain commercial
general liability insurance with coverage at least as broad as Insurance Services Office
form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000
general aggregate, for bodily injury, personal injury, and property damage, and a
$2,000,000 completed operations aggregate. The policy must include contractual liability
that has not been amended. Any endorsement restricting standard ISO "insured contract"
language will not be accepted.
5.3 Automobile Liability Insurance. Design -Build Entity shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily
injury and property damage for all activities of the Design -Build Entity arising out of or in
connection with Work to be performed under this Agreement, including coverage for any
owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000
combined single limit for each accident.
5.4 Umbrella or Excess Liability Insurance. Design -Build Entity may opt to utilize
umbrella or excess liability insurance in meeting insurance requirements. In such
circumstances, Design -Build Entity shall obtain and maintain an umbrella or excess
liability insurance policy that will provide bodily injury, personal injury and property
damage liability coverage at least as broad as the primary coverages set forth above,
including commercial general liability, automobile liability, and employer's liability. Such
policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond in the event that any primary
insurance that would otherwise have applied proves to be uncollectable in whole
or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement;
• Concurrency of effective dates with primary policies;
• Policies shall "follow form" to the underlying primary policies; and
• Insureds under primary policies shall also be insureds under the umbrella or
excess policies.
5.5 Workers' Compensation Insurance. Design -Build Entity shall maintain Workers'
Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits
of at least $1,000,000) for Design -Build Entity's employees in accordance with the laws
of the State of California, Section 3700 of the Labor Code. In addition, Design -Build Entity
shall require each subcontractor to similarly maintain Workers' Compensation Insurance
and Employer's Liability Insurance in accordance with the laws of the State of California,
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Section 3700 for all of the subcontractor's employees. Design -Build Entity shall submit
to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in
favor of the City of Palm Desert, its officers, agents, employees and volunteers.
5.6 Professional Liability (Errors & Omissions) Insurance. Design -Build Entity
shall maintain professional liability insurance that covers the Services to be performed in
connection with this Agreement, in the minimum amount of $1,000,000 per claim and in
the aggregate. Any policy inception date, continuity date, or retroactive date must be
before the effective date of this agreement and Consultant agrees to maintain continuous
coverage through a period no less than three years after completion of the services
required by this agreement.
5.7 Other insurance provisions or requirements
A. Proof of Insurance. Design -Build Entity shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsements must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this contract. City reserves the right to require complete, certified copies
of all required insurance policies, at any time.
B. Duration of Coverage. Design -Build Entity shall procure and maintain for the
duration of the contract insurance against claims for injuries to persons or damages to
property, which may arise from or in connection with the performance of the Work
hereunder by Design -Build Entity, its agents, representatives, employees or
subcontractors. Design -Build Entity must maintain general liability and umbrella or
excess liability insurance for as long as there is a statutory exposure to completed
operations claims. The City of Palm Desert and its officers, officials, employees, and
agents shall continue as additional insureds under such policies.
C. Primary/Noncontributing. Coverage provided by Design -Build Entity shall be
primary and any insurance or self-insurance procured or maintained by City shall not be
required to contribute with it. The limits of insurance required herein may be satisfied by
a combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of City, before the City's
own insurance or self-insurance shall be called upon to protect it as a named insured.
D. Products/Completed Operations Coverage. Products/completed operations
coverage shall extend a minimum of three (3) years after project completion. Coverage
shall be included on behalf of the insured for covered claims arising out of the actions of
independent contractors. If the insured is using subcontractors, the Policy must include
work performed "by or on behalf" of the insured. Policy shall contain no language that
would invalidate or remove the insurer's duty to defend or indemnify for claims or suits
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expressly excluded from coverage. Policy shall specifically provide for a duty to defend
on the part of the insurer. The City, its officials, officers, agents, and employees, shall be
included as additional insureds under the Products and Completed Operations coverage.
E. City's Rights of Enforcement. In the event any policy of insurance required under
this Agreement does not comply with these requirements or is canceled and not replaced,
City has the right but not the duty to obtain the insurance it deems necessary. Any
premium paid by City will be promptly reimbursed by Design -Build Entity or City will
withhold amounts sufficient to pay premium from Design -Build Entity payments. In the
alternative, City may cancel this Contract.
F. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of
insurance or is on the List of Approved Surplus Line Insurers in the State of California,
with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class
VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless
otherwise approved by the City's Risk Manager.
G. Waiver of Subrogation. All insurance coverage maintained or procured pursuant
to this Contract shall be endorsed to waive subrogation against the City of Palm Desert,
its elected or appointed officers, agents, officials, employees and volunteers, or shall
specifically allow Design -Build Entity or others providing insurance evidence in
compliance with these specifications to waive their right of recovery prior to a loss.
Design -Build Entity hereby waives its own right of recovery against the City of Palm
Desert, its elected or appointed officers, agents, officials, employees and volunteers, and
shall require similar written express waivers and insurance clauses from each of its
subconsultants.
H. Enforcement of Contract Provisions (non estoppel). Design -Build Entity
acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Design -Build Entity of non-compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
I. Requirements Not Limiting. Requirements of specific coverage features or limits
contained in this Article are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to
a given issue and is not intended by any party or insured to be all inclusive, or to the
exclusion of other coverage, or a waiver of any type. If the Design -Build Entity maintains
higher limits than the minimums shown above, the City requires and shall be entitled to
coverage for the higher limits maintained by the Design -Build Entity. Any available
insurance proceeds in excess of the specified minimum limits of insurance and coverage
shall be available to the City.
Spec. No. 21 00 72 53 -- GENERAL CONDITIONS
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J. Notice of Cancellation. Design -Build Entity agrees to oblige its insurance agent
or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except
for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for
each required coverage.
K. Additional Insured Status. General liability, automobile liability, and if applicable,
pollution liability policies shall provide or be endorsed to provide that the City of Palm
Desert and its officers, officials, employees, agents, and volunteers shall be additional
insureds under such policies. This provision shall also apply to any excess/umbrella
liability policies. Coverage shall be at least as broad as coverage provided by ISO's
Owners, Lessees, or Contractors Additional Insured Endorsement for the ongoing (i.e.
ISO Form CIS 20 10 07 04) and completed operations (i.e. ISO Form CG 20 37 07 04) of
Design -Build Entity.
L. Prohibition of Undisclosed Coverage Limitations. None of the coverages
required herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved of in
writing.
M. Separation of Insureds. A severability of interests provision must apply for all
additional insureds ensuring that Design -Build Entity's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except with respect to the
insurer's limits of liability. The policy(ies) shall not contain any cross -liability exclusions.
N. Pass Through Clause. Design -Build Entity agrees to ensure that its
subconsultants, subcontractors, and any other party involved with the project who is
brought onto or involved in the project by Design -Build Entity, provide the same "minimum
insurance coverage and endorsements required of Design -Build Entity. Design -Build
Entity agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Design -Build Entity agrees that upon request, all agreements with consultants,
subcontractors, and others engaged in the project will be submitted to City for review.
O. City's Right to Revise Requirements. The City or its Risk Manager reserves the
right at any time during the term of the contract to change the amounts and types of
insurance required by giving the Design -Build Entity ninety (90) days advance written
notice of such change. If such change results in substantial additional cost to the Design -
Build Entity, the City and Design -Build Entity may renegotiate Design -Build Entity's
compensation. If the City reduces the insurance requirements, the change shall go into
effect immediately and require no advanced written notice.
P. Self -Insured Retentions. Any self -insured retentions must be declared to and
approved by City. City reserves the right to require that self -insured retentions be
eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to
comply with these specifications unless approved by City.
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Q. Timely Notice of Claims. Design -Build Entity shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Design -Build
Entity's performance under this Contract, and that involve or may involve coverage under
any of the required liability policies.
R. Additional Insurance. Design -Build Entity shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own judgment may
be necessary for its proper protection and prosecution of the Work.
S. Safety. Design -Build Entity shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out its Services, the Design -Build
Entity shall at all times be in compliance with all applicable local, state and federal laws,
rules and regulations, and shall exercise all necessary precautions for the safety of
employees appropriate to the nature of the work and the conditions under which the work
is to be performed. Safety precautions, where applicable, shall include, but shall not be
limited to: (A) adequate life protection and lifesaving equipment and procedures; (B)
instructions in accident prevention for all employees and subcontractors, such as safe
walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space
procedures, trenching and shoring, equipment and other safety devices, equipment and
wearing apparel as are necessary or lawfully required to prevent accidents or injuries;
and (C) adequate facilities for the proper inspection and maintenance of all safety
measures.
5.8 Performance Bond and Payment Bond.
A. The Design -Build Entity shall submit performance and payment bonds on the forms
provided with the Contract Documents, duly executed by a responsible corporate
surety admitted to transact surety business in the State of California, as defined in
Code of Civil Procedure Section 995.120, and listed in the United States Department
of the Treasury circular entitled "Companies Holding Certificates of Authority as
Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies,"
authorized to do business in the State of California and acceptable to City conditioned
upon the faithful performance by the Design -Build Entity of all requirements of the
Contract Documents. Each of the bonds shall be in a sum no less than one hundred
percent (100%) of the Guaranteed Maximum Price. The Design -Build Entity shall
furnish bonds covering the faithful performance of the Contract (Performance Bond)
and payment of obligations arising thereunder (Payment Bond) on the forms contained
in the Contract.
B. The Payment Bond and Performance Bond shall be in effect on the date the Contract
is signed by City.
C. The Design -Build Entity shall promptly furnish such additional security as may be
required by City to protect its interests and those interests of persons or firms supplying
labor or materials to the Project.
Spec. No.
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CONTRACT NO. C39110
D. The premiums for the Payment Bond and Performance Bond shall be paid by the
Design -Build Entity.
E. The Design -Build Entity maintains and agrees that it has executed Payment and
Performance Bonds in the amounts and manner required by the Contract Documents.
F. No payment will be made to the Design -Build Entity until the Design -Build Entity's
Payment Bond and Performance Bond have been approved by City.
G. Should, in City's sole opinion, any bond become insufficient or surety found to be
unsatisfactory, the Design -Build Entity shall renew or replace the effected bond within
10 Days of receiving notice from City.
H. In the event the surety or the Design -Build Entity intends to reduce or cancel any
required bonds, at least thirty (30) Days prior written notice shall be given to City, and
the Design -Build Entity shall post acceptable replacement bonds at least ten (10) Days
prior to expiration of the original bonds. No further payments shall be deemed due or
will be made under this Contract until any replacement bonds required by this Article
5.8 are accepted by City.
I. To the extent, if any, that the Guaranteed Maximum Price is increased in accordance
with the Contract, the Design -Build Entity shall, upon request of City, cause the amount
of the bonds to be increased accordingly and shall promptly deliver satisfactory
evidence of such increase to City.
J. The bonds shall further provide that no change or alteration of the Contract (including,
without limitation, an increase in the Guaranteed Maximum Price, as referred to
above), extensions of time, or modifications of the time, terms, or conditions of
payment to the Design -Build Entity will release the surety. If the Design -Build Entity
fails to furnish any required bond, City may terminate the Contract for cause.
ARTICLE 6 -DESIGN-BUILD ENTITY'S RESPONSIBILITIES
6.1 Desian-Build Entitv Responsibility: IndeDendent Contractor.
The Design -Build Entity shall be responsible to City for acts and omissions of the Design -
Build Entity's employees, Subcontractors, material and equipment suppliers, and their
agents, employees, invitees, and other persons performing portions of Work on the
Project under direct or indirect contract with the Design -Build Entity or any of its
Subcontractors. City retains the Design -Build Entity on an independent contractor basis.
The Design -Build Entity is not an employee, agent or representative of City. The Design -
Build Entity represents that it is fully experienced and properly qualified to perform the
class of Work provided for in this Contract and that it is properly licensed, equipped,
organized, and financed to perform Work on the Project. The Design -Build Entity shall
maintain complete control over its employees and its Subcontractors and shall pay all
wages, salaries and other amounts due such personnel in connection with their
performance as required by law. The Design -Build Entity shall be responsible for all
reports and obligations respecting such personnel, including but not limited to, social
security taxes, income tax withholdings, unemployment insurance, and workers'
compensation insurance.
Spec. No.
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CONTRACT NO. C39110
6.2 Review of Contract Documents and Field Conditions by The Design -Build Entitv: Sinale
Point Responsibility of The Desian-Build Entitv.
A. In addition to the examination and reviews performed, and obligations assumed,
incident to making the representations set forth in Section 00 42 53, Article 1.1, the
Design -Build Entity shall carefully study and compare each of the Contract Documents
provided by City with the others and with information furnished by City, and shall
promptly report in writing to City's Representative any errors, inconsistencies, or
omissions in the Contract Documents provided by City or inconsistencies with
Applicable Law observed by the Design -Build Entity. The Design -Build Entity shall be
solely responsible for any errors, inconsistencies or omissions in the Contract
Documents if the Design -Build Entity fails to perform such review and examination or
fails to report such errors, inconsistencies or omissions to City in writing.
B. The Design -Build Entity is responsible for the design and construction of the Project
and shall use the highest design and engineering standards of care applicable to
projects, buildings or work of similar size, complexity, quality and scope in performing
Work on the Project. The Design -Build Entity shall be solely responsible for any and
all design errors including, but without limitation, errors, inconsistencies or omissions
in the Construction Documents. The Design -Build Entity shall take field
measurements, verify field conditions, and carefully compare with the Contract
Documents such field measurements, conditions, and other information known to the
Design -Build Entity before commencing Work on the Project. Errors, inconsistencies,
or omissions discovered at any time shall be promptly reported in writing to City's
Representative.
C. If the Design -Build Entity performs any design and/or construction activity which it
knows, or should know, involves an error, inconsistency, or omission referred to in this
Article, without notifying and obtaining the written consent of City's Representative,
the Design -Build Entity shall be responsible for the resultant Losses, including, without
limitation, the costs of correcting Defective Work.
D. City does not assume any obligation to employ the Design -Build Entity's services or
pay the Design -Build Entity royalties of any type as to future programs that may result
from Work performed under this Contract.
E. The Design -Build Entity shall be responsible for all plotting, printing, copying and
distribution costs of any and all documents required in connection with Work on the
Project.
F. The Design -Build Entity agrees that it has single point responsibility for the design and
construction of this Project, and agrees to utilize the highest standard of excellent
design, engineering and construction practices. The Design -Build Entity has the duty
to act in City's best interests at all times throughout the course and performance of
this Contract.
Spec. No.
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6.3 Design. Supervision and Construction Procedures.
A. The Design -Build Entity shall supervise, coordinate, and direct all Work on the Project
using the Design -Build Entity's best skill and attention and applying such skills and
expertise as may be necessary to perform the Work in accordance with the Contract
Documents. The Design -Build Entity shall be solely responsible for, and have control
over, the entire design effort, construction means, methods, techniques, sequences,
procedures, and the coordination of all portions of Work on the Project, including, but
without limitation, landscape and site work, utilities, and building systems.
B. The Design -Build Entity shall be responsible to City for acts and omissions of the
Design -Build Entity, its agents, employees, and Subcontractors, and their respective
agents and employees.
C. The Design -Build Entity shall not be relieved of its obligation to perform all Work on
the Project in accordance with the Contract Documents either by acts or omissions of
City or City's Representative in the administration of the Contract, or by tests,
inspections, or approvals required, or performed, by persons or firms other than the
Design -Build Entity.
D. The Design -Build Entity shall be responsible for inspection of all portions of Work on
the Project to determine that such portions conform to the requirements of the Contract
Documents and are ready to receive subsequent Work.
E. To facilitate communications and the management of the design process, the Design -
Build Entity shall maintain an office in Riverside County for the duration of the design
process.
F. Unless otherwise provided in the Contract Documents, the Design -Build Entity shall
provide and pay for all professional design/engineering services, services, labor,
materials, equipment, tools, construction equipment and machinery, water, heat,
utilities, transportation, and other facilities and services necessary for proper execution
and completion of the Work on the Project, whether temporary or permanent and
whether or not incorporated or to be incorporated in Work on the Project. The Design -
Build Entity shall furnish architectural and engineering services for the preparation of
Construction Documents necessary to complete the Project in accordance with the
requirements of the Contract Documents. From the City -approved Construction
Documents, which are developed from the City -accepted Proposal, the Design -Build
Entity shall furnish all labor, materials, equipment, services, and transportation
necessary to complete construction of the Project, including site work, structures and
utilities.
G. The Design -Build Entity is required to deliver to City, if requested, any and all Design
Materials including, but not limited to, calculations, preliminary drawings, construction
drawings, shop drawings, electronic media data, tenant improvement documents,
sketches, illustrations, specifications, descriptions, models, mock ups, and other
information developed, prepared, furnished, or delivered in the prosecution of the
Design Work.
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26 00 72 53 -- GENERAL CONDITIONS
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CONTRACT NO. C39110
H. The Design -Build Entity is responsible for preparation of the Construction Documents
for the entire Project.
I. The Design -Build Entity is responsible for construction of the entire Project as required
by the Contract Documents.
J.The Design -Build Entity shall at all times maintain good discipline and order among its
employees and Subcontractors. The Design -Build Entity shall provide competent, fully
qualified personnel to perform all Work on the Project.
6.4 Labor: Workina Hours.
A. The Design -Build Entity shall provide competent, suitably qualified personnel to survey
and lay out the Work and perform construction as required by the Contract Documents.
The Design -Build Entity shall at all times maintain good discipline and order at the Site.
B. Except as otherwise required for the safety or protection of persons or the Work or
property at the Site or adjacent thereto, and except as otherwise stated in the Contract
Documents, all Work at the Site shall be performed during regular working hours,
which are defined as hours between 7:00 a.m. and 3:30 p.m. any day Monday through
Friday of any week except on Holidays and/or during Schedule Constraints defined in
the Contract Documents. The Design -Build Entity will not permit the performance of
Work on a Saturday, Sunday, any Holiday or during identified Schedule Constraints
without City's written consent given after prior written notice to City's Representative.
The Design -Build Entity shall be responsible for, and shall reimburse City for, all
inspection costs outside regular working hours, including overtime.
C. The Design -Build Entity will provide all labor needed to complete the Work within the
Contract Times.
6.5 Progress Meetinas.
A. The Design -Build Entity shall schedule and hold regular on -Site progress meetings at
least weekly and at other times as requested by the City or as required by progress of
the Work. The Design -Build Entity, City's Representative, and all Subcontractors
active on the Site shall attend each meeting. The Design -Build Entity may at its
discretion request attendance by representatives of its Suppliers, manufacturers, and
other Subcontractors.
B. City's Representative will preside at the progress meetings and will arrange for
keeping and distributing the minutes. The purpose of the meetings is to review the
progress of the Work, maintain coordination of efforts, discuss changes in scheduling,
and resolve other problems which may develop. During each meeting, the Design -
Build Entity shall present any issues which may impact its progress with a view to
resolve these issues expeditiously.
Spec. No.
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CONTRACT NO. C39110
6.6 Cost -Loaded CPM Proaress Schedule and Recovery Schedule..
A. Design -Build Entity shall adhere to the Master Project Schedule, which shall be a cost -
loaded GPM progress schedule established in accordance with the Contract
Documents as it may be adjusted from time to time as provided below:
1. Design -Build Entity shall submit to City's Representative for acceptance proposed
adjustments in the Project Schedule that will not result in changing the Project
Completion Date. Such adjustments will comply with any provisions of the General
Requirements applicable thereto.
2. Proposed adjustments in the Project Schedule that will change the Project
Completion Date shall be submitted in accordance with the requirements of the
Contract Documents. Adjustments in the Project Completion Date may only be
made by a Change Order.
3. Should any of the following conditions exist, City may require Design -Build Entity
to prepare, at no extra cost to City, a plan of action and a recovery schedule for
completing the Work and achieving all contractual milestones within the Project
Completion Date:
a. The Design -Build Entity's monthly progress report indicates delays that are, in
the opinion of City, of sufficient magnitude that City questions the Design -Build
Entity's ability to complete the Work;
b. The Project Schedule shows the Design -Build Entity to be thirty (30) or more
Days behind the critical path at any time during construction;
c. The Design -Build Entity desires to make changes in the logic or the planned
duration of future activities of the Project Schedule which, in the opinion of City,
are major in nature.
d. The recovery schedule shall include proposed revisions to the Project
Schedule, demonstrating how Design -Build Entity intends to achieve all
contractual milestones including contract completion within the Project
Completion Date. The submittal shall include a narrative describing the actions
planned by the Design -Build Entity to recover the schedule.
e. Design -Build Entity shall submit the recovery schedule within seven (7) Days
of City's request:
(i) If Design -Build Entity asserts that City is responsible for the delay, failure
to submit the recovery schedule within seven (7) Days of City's request will
be considered a concurrent delay event attributable to Design -Build Entity,
and Design -Build Entity shall only be entitled to non-compensable
adjustments to the Project Completion Date.
(ii) If Design -Build Entity is responsible for the delay, this provision will not limit
or affect Design -Build Entity's liability and failure to submit the recovery
schedule with seven (7) Days of City's request may result in City
Spec. No.
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CONTRACT NO. C39110
withholding progress payments or other amounts due under the Contract
Documents.
f. Design -Build Entity is responsible for all costs associated with the preparation
and execution of the recovery schedule, including any necessary recovery
actions, which may include, but are not limited to, assignment of additional
labor, and/or equipment, shift or overtime work, expediting of submittals or
deliveries, overlapping of activities or sequencing changes to increase activity
concurrence.
g. Regardless of whether City directs Design -Build Entity to prepare a recovery
schedule pursuant to this Article 6.6, Design -Build Entity shall promptly
undertake appropriate action at no additional cost to City to recover the
schedule whenever the current Project Schedule shows that the Design -Build
Entity will not achieve a milestone and/or complete the Work within the Project
Completion Date.
B. Unless otherwise specified in the Contract Documents, Design -Build Entity shall
provide and assume full responsibility for all services, materials, equipment, labor,
transportation, construction equipment and machinery, tools, appliances, fuel, power,
light, heat, telephone, water, sanitary facilities, temporary facilities, and all other
facilities and incidentals necessary for the performance, testing, start up, and
completion of the Work within the Project Completion Date.
C. Failure of City's Representative to discover errors or omissions in schedules that it has
reviewed, or to inform the Design -Build Entity that the Design -Build Entity,
Subcontractors, or others are behind schedule, or to direct or enforce procedures for
complying with the Project Schedule shall not relieve the Design -Build Entity from its
sole responsibility to perform and complete all Work on the Project within the Project
Completion Date and shall not be a cause for an adjustment of the Project Completion
Date or the Guaranteed Maximum Price.
D. The Design -Build Entity shall perform all Work on the Project in accordance with the
current accepted Project Schedule.
6.7 Materials.
A. All materials and equipment incorporated into the Work shall be as specified or, if not
specified, shall be of good quality and new, except as otherwise provided in the
Contract Documents. All materials furnished by the Design -Build Entity shall be of the
most suitable grade for the purpose intended considering strength, ductility, durability,
and best industry practice.
B. All special warranties and guarantees required by the Contract Documents shall
expressly run to the benefit of City. If required by City's Representative, Design -Build
Entity shall furnish satisfactory evidence (including reports of required tests) as to the
source, kind, and quality of materials and equipment.
Spec. No.
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CONTRACT NO. C39110
C. All materials and equipment shall be stored, applied, installed, connected, erected,
protected, used, cleaned, and conditioned in accordance with instructions of the
applicable supplier, except as otherwise may be provided in the Contract Documents.
D. Materials shall be furnished in ample quantities and at such times as to ensure
uninterrupted progress of the Work and shall be stored properly and protected as
required by the Contract Documents. Design -Build Entity shall be entirely responsible
for damage or loss by weather or other causes to materials or Work until City has
accepted the Work.
E. No materials, supplies, or equipment for Work under this Contract shall be purchased
subject to any chattel mortgage or under a conditional sale or other agreement by
which an interest therein or in any part thereof is retained by the seller or supplier.
Design -Build Entity warrants good title to all material, supplies, and equipment
installed or incorporated in the work and agrees upon completion to deliver the Work
to City free from any claims, liens, or encumbrances.
F. Materials shall be stored on the Project site in such manner so as not to interfere with
any operations of City or any independent contractor.
6.8 Submittals.
A. Industry Standard Submittals.
Design -Build Entity will identify in the Construction Documents all industry standard
submittals for all materials, systems, and equipment incorporated into the Work.
B. Schedule of Submittals.
Design -Build Entity will prepare and deliver a Schedule of Submittals to City's
Representative that has been fully integrated with the Cost -Loaded CPM Progress
Schedule and identifies each Submittal required by the Construction Documents as
well as the date on which Design -Build Entity will deliver each Submittal to City's
Representative. Each Submittal must be delivered to City's Representative at least
thirty (30) Days prior to the date the material or equipment is scheduled to be
incorporated into the Work. The Design -Build Entity is responsible for any schedule
delays resulting from the Submittal process.
C. Submittal Procedures.
1. The Design -Build Entity will follow the following procedures for each Submittal,
Shop Drawing and Sample required by the Contract Documents:
a. Transmit three (3) copies of each with a Submittal Transmittal.
b. Transmittals will be sequentially numbered. The Design -Build Entity to mark
revised Submittals with original number and sequential alphabetic suffix.
Spec. No.
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CONTRACT NO. C39110
c. Each Submittal will identify the Project, the Design -Build Entity, Subcontractor
and supplier, pertinent Construction Document and detail number, and
specification section number appropriate to the Submittal.
d. The Design -Build Entity must sign each Submittal, certifying that it has
reviewed and approved the Submittal, verified products required, field
dimensions, adjacent construction work, and that coordination of information is
according to requirements of the Project and Contract Documents.
e. Identify variations in Contract Documents and product or system limitations
that may differ and/or be detrimental to successful performance of completed
Work.
f. When a Submittal is revised for resubmission, the Design -Build Entity shall
promptly address City comments and resubmit. The Design -Build Entity shall
identify changes made since previous submission.
g. City's review of Submittals shall not relieve the Design -Build Entity from
responsibility for deviations from the Contract Documents unless the Design -
Build Entity has, in writing, called City's attention to such deviations at time of
submission and City's has taken no exception to the deviation. City's review of
Submittals shall not relieve the Design -Build Entity from responsibility for errors
in the Submittals.
h. Submittals not required by the Construction Documents or requested by City's
Representative will not be acknowledged or processed.
i. Incomplete Submittals will not be reviewed by City's Representative. Delays
resulting from incomplete submittals are not the responsibility of City's
Representative.
j. The Design -Build Entity shall not be entitled to any extension of the Project
Completion Date as a result of the Submittal process.
2. Where a Submittal, Shop Drawing or Sample is required by the Construction
Documents, any related Work performed prior to City's Representative's review
and approval of the pertinent Submittal will be at the sole expense and
responsibility of the Design -Build Entity.
3. Schedule Milestones for Submittals., Design -Build Entity must submit all submittals
required by the Construction Documents in accordance with the Schedule of
Submittals. If Design -Build Entity fails to submit the submittals in accordance with
the Schedule of Submittals, Design -Build Entity will be solely liable for any delays
or impacts caused by the delayed submittal, whether direct or indirect. Design -
Build Entity will be liable for the time calculated from the date the submittal is due
until the date a compliant submittal is made. A compliant submittal will be one that
is complete and satisfies the requirements of the Contract Documents.
Spec. No.
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6.9 Shop Drawina and Sample Submittal Procedures.
A. Before submitting each Shop Drawing or Sample, Design -Build Entity shall have:
1. reviewed and coordinated each Shop Drawing or Sample with other Shop
Drawings and Samples and with the requirements of the Work and the Contract
Documents;
2. determined and verified all field measurements, quantities, dimensions, specified
performance and design criteria, installation requirements, materials, catalog
numbers, and similar information with respect thereto;
3. determined and verified the suitability of all materials offered with respect to the
indicated application, fabrication, shipping, handling, storage, assembly, and
installation pertaining to the performance of the Work; and
4. determined and verified all information relative to the Design -Build Entity's
responsibilities for means, methods, techniques, sequences, and procedures of
construction, and safety precautions and programs incident thereto.
B. With each Submittal, the Design -Build Entity shall give City's Representative specific
written notice of any variations that the Shop Drawing or Sample may have from the
requirements of the Contract Documents. This notice shall be both a written
communication separate from the Shop Drawings or Sample submittal and, in addition,
a specific notation made on each Shop Drawing or Sample submitted to City's
Representative for review and approval of each such variation.
C. Shop Drawinas.
1. Data shown on the Shop Drawings will be complete with respect to quantities,
dimensions, specified performance and design criteria, materials, and similar data
to show City's Representative the services, materials, and equipment Design -Build
Entity proposes to provide and to enable City's Representative to review the
information Representative for assessing conformance with information given and
design concept expressed in Contract Documents.
2. When required by individual Specification Sections, provide Shop Drawings signed
and sealed by a professional engineer responsible for designing components
shown on Shop Drawings. Shop Drawings must include signed and sealed
calculations to support design in a form suitable for submission to and approval by
authorities having jurisdiction.
3. Design -Build Entity shall make revisions and provide additional information when
required by authorities having jurisdiction.
Spec. No.
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D. Samples.
1. Clearly identify each Sample as to material, Supplier, pertinent data such as
catalog numbers, the use for which intended and other data as required to enable
City's Representative to review the submittal for assessing conformance with
information given and design concept expressed in Contract Documents.
2. Samples should be of appropriate size and detail to assess functional, aesthetic,
color, texture, patterns and finish selection.
E. Citv's Representative's Review.
1. City's Representative will review Shop Drawings and Samples in accordance with
the Schedule of Submittals. City's Representative's review and acceptance will be
only to determine if the items covered by the Submittals will, after installation or
incorporation in the Project, conform to the information given in the Contract
Documents and be compatible with the design concept of the completed Project
as a functioning whole as indicated by the Contract Documents.
2. City's Representative's review and approval will not extend to means, methods,
techniques, sequences, or procedures of construction (except where a particular
means, method, technique, sequence, or procedure of design or construction is
specifically and expressly called for by the Contract Documents) or to safety
precautions or programs incident thereto. The review and approval of a separate
item as such will not indicate approval of the assembly in which the item functions.
3. City's Representative's review and acceptance shall not relieve the Design -Build
Entity from responsibility for any variation from the requirements of the Contract
Documents unless City's Representative has given written approval of each such
variation by specific written notation thereof incorporated in or accompanying the
Submittal.
F. The Design -Build Entity shall make corrections required by City's Representative and
shall return three (3) corrected copies of Shop Drawings and Product Data, and
submit, as required, new Samples for review and approval. The Design -Build Entity
shall direct specific attention in writing to revisions other than the corrections called for
by City's Representative on previous Submittals.
G. City will review the first resubmittal of Shop Drawings at its cost. City reserves the
right to reduce the Guaranteed Maximum Price by Change Order for its cost for any
subsequent reviews of Shop Drawing resubmittals.
Spec. No.
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6.10 Construction Documents.
A. Construction Documents.
Upon receipt of the Notice to Proceed, the Design -Build Entity shall instruct the
A/E to commence the design of the building systems and the preparation of the
Construction Documents. The Construction Documents shall provide information
customarily necessary in documents for projects of similar size, complexity, and
quality. The Construction Documents shall include all information required by the
building trades to complete the construction of the Project, other than such details
customarily developed by others during construction. City's review of the
Construction Documents shall be conducted in accordance with the approved
Master Project Schedule with procedures set forth in this Article 6.10. Such review
shall not relieve the Design -Build Entity from its responsibilities under the Contract.
Such review shall not be deemed an approval or waiver by City of any deviation
from, or of the Design -Build Entity's failure to comply with, any provision or
requirement of the Contract Documents, unless such deviation or failure has been
identified as such in writing in the Document submitted by the Design -Build Entity
and approved by City.
2. However, it is acknowledged by the parties hereto that inherent in a Design -Build
concept, bridging or otherwise, the production and review of Construction
Documents may be a continuing process with portions thereof completed at
different times. The Design -Build Entity will submit the Construction Document
packages to City for review and approval in accordance with the agreed upon
schedule, unless otherwise approved in writing by City. The Master Project
Schedule shall indicate the times for City to review the completion of each such
portion of the Construction Documents and a reasonable time for review of same.
3. The Design -Build Entity shall submit completed packages of the Construction
Documents for review by City at the times indicated on the Master Project
Schedule and as defined in the Scheduling Specification. Meetings between the
Design -Build Entity and City to review the Construction Document packages, shall
be scheduled at least every two weeks, or as otherwise agreed to by the parties,
and held so as not to delay Work on the Project. The Design -Build Entity will
conduct these design meetings with City in accordance with the schedule
approved by City. The Design -Build Entity will be responsible for preparing and
circulating for the parties review, design meeting minutes from all such meetings.
4. The Construction Documents for hazardous and/or toxic abatement efforts and
demolition activity shall be of sufficient clarity and shall be fully detailed when
submitted to City for review.
B. Shop Drawinas. Product Data. Samples. Materials, and EauiDment.
1. Shop drawings means drawings, submitted to the Design -Build Entity by
Subcontractors, manufacturers, supplier or distributors, showing in detail the
proposed fabrication and assembly of building elements and the installation (e.g.,
form, fit, and attachment details) of materials or equipment.
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2. The Design -Build Entity shall coordinate all submittals and review them for
accuracy, completeness, and compliance with the requirements of the Contract
Documents and the Design -Build Entity's Construction Documents and shall
indicate its approval thereon as evidence of such coordination and review.
3. Materials and equipment incorporated in the Work on the Project shall match the
approved samples within tolerances appropriate to the items, and as may be
described in the Contract Documents.
4. The Design -Build Entity shall submit shop drawings approved by the A/E and
samples of submittals that relate to finish materials and products.
5. Wherever the name or brand of manufacturer or an article is listed in the Contract
Documents, it is to be used in Work on the Project as the standard. Any variation
in quality must be approved by City.
C. Field Enaineerina.
1. The Design -Build Entity shall retain and pay expenses of a civil engineer or land
surveyor to establish on the Project site the required reference points and
benchmarks, establish building lines and elevations, check for building framing,
plumbness, and establish on building frame the required basic grid lines. The
engineer or land surveyor shall be properly licensed in the State of California.
2. The Design -Build Entity shall locate and protect control points prior to starting Work
on the Project site and presence permanent reference points during construction,
and shall require the engineer or surveyor to replace control points which become
lost or destroyed.
D. Geotechnical and Survev.
City shall provide a geotechnical report to Design -Build Entity that shall not be
considered a part of the Contract Documents and shall be informational only and
may not be relied upon by Design -Build Entity to form its basis of design. Design -
Build Entity shall be responsible for obtaining its own geotechnical report which
includes supporting data, findings and recommendations; and also with a legal
description and a project survey, as necessary, which shall become a part of the
Contract Documents. The Design Work shall be consistent with both the findings
and recommendations of the Design -Build Entity's geotechnical report and legal
description and Project survey, or such other geotechnical recommendations
obtained by Design -Build Entity at its sole cost and expense.
2. The Design -Build Entity shall verify the location and depth (elevation) of all existing
utilities and services before performing any excavation work.
3. Any additional tests, borings, etc. necessary to support the Construction
Documents shall be the responsibility of the Design -Build Entity.
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6.11 Dust Control.
A. Design -Build Entity, at its expense, shall maintain all excavations, embankments, haul
roads, permanent access rods, plant sites, waste disposal areas, borrow areas, and
all other work areas free from dust. Industry accepted methods of dust control suitable
for the area involved, such as sprinkling, chemical treatment, light bituminous
treatment or similar methods, will be permitted.
6.12 Air Pollution.
A. Design -Build Entity shall not discharge into the atmosphere from any source whatever
smoke, dust, or other air contaminants in violation of the laws, rules, and regulations
of the governmental entities having jurisdiction.
6.13 Patent Fees and Rovalties.
A. Design -Build Entity shall pay all license fees and royalties and assume all costs
incident to the use in the performance of the Work or the incorporation in the Work of
any invention, design, process, product, or device which is the subject of patent rights
or copyrights held by others. If a particular invention, design, process, product, or
device is specified in the Contract Documents for use in the performance of the Work
and if, to the actual knowledge of City or City's Representative, its use is subject to
patent rights or copyrights calling for the payment of any license fee or royalty to
others, the existence of such rights shall be disclosed by City in the Contract
Documents.
B. To the fullest extent permitted by Applicable Laws, Design -Build Entity shall indemnify,
defend, and hold harmless City and City's Representative, and the officers, directors,
members, partners, employees, agents, consultants and subcontractors of each and
any of them, from and against all claims, costs, losses, and damages (including but
not limited to all fees and charges of engineers, architects, attorneys, and other
professionals and all court or arbitration or other dispute resolution costs) arising out
of or relating to any infringement of patent rights or copyrights incident to the use in
the performance of the Work or resulting from the incorporation in the Work of any
invention, design, process, product, or device not specified in the Contract Documents
or specified in the Contract Documents and identified as being subject to payment of
any license fee or royalty to others required by patent rights or copyrights.
6.14 Permits and Licenses.
Permits and licenses necessary for prosecution of the Work shall be secured and paid
for by Design -Build Entity, unless otherwise specified in the Contract Documents.
A. Design -Build Entity shall obtain and pay for all other permits and licenses required for
the Work, including excavation permit and permits for plumbing, mechanical and
electrical work and for operations in or over public streets or right of way under
jurisdiction of public agencies other than City.
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B. The Design -Build Entity shall arrange and pay for all off -site inspection of the Work
related to permits and licenses, including certification, required by the Performance
Specifications, drawings, or by governing authorities, except for such off -site
inspections identified as City's responsibility in the Contract Documents.
C. Before acceptance of the Work, the Design -Build Entity shall submit all licenses,
permits, certificates of inspection and required approvals to City.
6.15 Design -Build Entitv Standard of Care.
A. The Design -Build Entity warrants to City that all Design Work will be performed in
accordance with the highest professional standards and degree of care applicable to
those design professionals who specialize in designing and providing services for
projects of the type, scope, quality and complexity of the Project utilizing the Design -
Build contracting mode. The Design -Build Entity warrants to City that all labor,
materials, equipment and furnishings used in, or incorporated into, the Construction
Work will be of good quality, new (unless otherwise required or permitted by the
Contract Documents), and all Work will be free of liens, claims and security interests
of third parties; that the Work will be of the highest quality and free from defects and
that all Work will conform with the requirements of the Contract Documents. If required
by City's Representative, the Design -Build Entity shall furnish satisfactory evidence of
compliance with this Article 6.15. Further, the type, quality and quantity of such
evidence shall be within the sole discretion of City's Representative.
B. The Design -Build Entity shall supervise, inspect, and direct the Project competently
and efficiently, devoting such attention thereto and applying such skills and expertise
as may be necessary to perform the Project in accordance with the Contract
Documents. The Design -Build Entity shall be solely responsible for the means,
methods, techniques, sequences, and procedures of design and construction of the
Project.
6.16 Applicable Laws.
A. Design -Build Entity shall give all notices required by and shall comply with all
Applicable Laws applicable to the performance of the Work. Except where otherwise
expressly required by Applicable Laws, neither City nor City's Representative shall be
responsible for monitoring Design -Build Entity's compliance with any Applicable Laws.
B. If Design -Build Entity performs any Work knowing or having reason to know that it is
contrary to Applicable Laws, Design -Build Entity shall bear all claims, costs, losses,
and damages (including but not limited to all fees and charges of engineers, architects,
attorneys, and other professionals and all court or arbitration or other dispute
resolution costs) arising out of or relating to such Work.
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6.17 Labor Laws and Design -Build Entitv's Obligations.
A. Hours of Work.
1. The Design -Build Entity and Subcontractors shall furnish sufficient forces to ensure
the prosecution of the Work on the Project in accordance with the Construction
Schedule and in such a manner to allow for the full and adequate completion of
the Project within the Project Completion Date.
2. Work on the Project shall be performed during regular working hours, except that
in the event of an emergency or when required to complete the Work on the Project
in accordance with job progress, Work may be performed outside of regular
working hours with advance written notice to City. Permissible working hours shall
be between 7:00 a.m. to 8:00 p.m. and shall not be changed except with consent
of City.
3. Eight (8) hours of work shall constitute a legal day's work. The Design -Build Entity
and each Subcontractor shall forfeit, as penalty to City, twenty-five dollars ($25)
for each worker employed in the execution of Work on the Project by the Design -
Build Entity or any Subcontractor for each day during which such worker is required
or permitted to work more than eight (8) hours in any one day and forty (40) hours
in any week in violation of the provisions of the Labor Code, and in particular,
Section 1810 to Section 1815, except as provided in Labor Code Section 1815.
4. If the work done after hours is required by the Contract to be done outside the
Design -Build Entity's regular working hours, the costs of any inspections, if
required to be done outside normal working hours, shall be borne by City. If City
allows the Design -Build Entity to do Work outside regular working hours for the
Design -Build Entity's own convenience, the costs of any inspections required
outside regular working hours shall be invoiced to the Design -Build Entity by City
and deducted from the next progress payment. If the Design -Build Entity elects to
perform Work outside the Inspector's regular working hours, costs of any
inspections required outside regular working hours shall be invoiced to the Design -
Build Entity by City and deducted from the next progress payment.
5. No Work on the Project or other activities by or on behalf of the Design -Build Entity
which presents a hazard or unreasonable disruption to City staff shall be allowed
during normal working hours. The determination as to whether Work on the Project
or some other activity presents a hazard or constitutes an unreasonable disruption
to City staff shall be made by and pursuant to the sole discretion of a representative
of City. All Work on the Project or other activities which could present a hazard or
unreasonable disruption to City staff shall be performed before or after normal
working hours, on weekends, or on a City recognized holiday. Neither the Design -
Build Entity nor its Subcontractors or anyone working on behalf of the Design -Build
Entity or Subcontractors shall be entitled to additional compensation or an
extension of the Project Completion Date for having to arrange their Work schedule
so as not to violate the provisions of this Article 6.17A. The Design -Build Entity,
Subcontractors and persons working on behalf of the Design -Build Entity shall be
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expected to arrange such Work and other activities in advance so as to avoid
creating monetary or time impacts.
B. Waae Rates, Travel, and Subsistence.
1. The Design -Build Entity is aware of the requirements of Labor Code Sections 1720
et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section
16000 et seq. ("Prevailing Wage Laws"), which require the payment of prevailing
wage rates and the performance of other requirements on certain "public works"
and "maintenance" projects. Since the Work on the Project involves an applicable
"public works" or "maintenance" project, as defined by the Prevailing Wage Laws,
and since the total compensation is $25,000 or more, the Design -Build Entity
agrees to fully comply with such Prevailing Wage Laws. City has obtained the
prevailing wage rates from the Director of the Department of Industrial Relations,
State of California. Copies of the prevailing wage rates are on file at City's office
in Palm Desert and shall be made available to any interested party on request. the
Design -Build Entity shall make copies of the prevailing rates of per diem wages for
each craft, classification or type of worker needed to perform the Project available
to interested parties upon request, and shall post copies at the Design -Build
Entity's principal place of business and at the Project site. The Design -Build Entity
shall defend, indemnify and hold City, its elected officials, officers, employees and
agents free and harmless from any claims, liabilities, costs, penalties or interest
arising out of any failure or allege failure to comply with the Prevailing Wage Laws.
2. Pursuant to Labor Code Section 1775, the Design -Build Entity is hereby advised
that in the event that the Design -Build Entity fails to pay prevailing wages, the
Design -Build Entity will be held liable for penalties and for shortfalls in wages and
such amounts may be withheld from progress payments. the Design -Build Entity
and each Subcontractor shall forfeit as a penalty to City not more than two hundred
dollars ($200) for each Day, or portion thereof, for each worker paid less than the
stipulated prevailing wage rate for any work done by him, or by any subcontract
under him, in violation of the provisions of the Labor Code. The difference between
such stipulated prevailing wage rate and the amount paid to each worker for each
Day or portion thereof for which each worker was paid less than the stipulated
prevailing wage rate shall be paid to each worker by the Design -Build Entity.
3. The Design -Build Entity shall post, at appropriate conspicuous points on the
Project site, a schedule showing all determined general prevailing wage rates and
all authorized deductions, if any, from unpaid wages actually earned.
C. Labor Compliance/Pavroll Records.
Pursuant to Labor Code Section 1776, the Design -Build Entity and each
Subcontractor shall maintain weekly certified payroll records showing the name,
address, social security number, work classification, straight time and overtime
hours paid each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker or other employee employed in connection with
the Project. The Design -Build Entity shall certify under penalty of perjury that
records maintained and submitted by the Design -Build Entity are true and
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accurate. The Design -Build Entity shall also require Subcontractor(s) to certify
weekly payroll records under penalty of perjury.
2. In accordance with Labor Code section 1771.4, the Design -Build Entity and each
Subcontractor shall furnish the certified payroll records directly to the Department
of Industrial Relations ("DIR") on a weekly basis and in the format prescribed by
the DIR. This may include electronic submission. Design -Build Entity shall ensure
full compliance with all requirements and regulations from the DIR relating to labor
compliance monitoring and enforcement and all other applicable labor law.
3. Any stop orders issued by the DIR against Design -Build Entity or any
Subcontractor that affect Design -Build Entity's performance of Work, including any
delay, shall be Design -Build Entity's sole responsibility. Any delay arising out of or
resulting from such stop orders shall be considered Design -Build Entity caused
delay subject to any applicable liquidated damages and shall not be compensable
by the City. Design -Build Entity shall defend, indemnify and hold the City, its
officials, officers, employees and agents free and harmless from any claim or
liability arising out of stop orders issued by the DIR against Design -Build Entity or
any Subcontractor.
4. The payroll records described herein shall be certified and submitted by the
Design -Build Entity at a time designated by the City. The Design -Build Entity shall
also provide the following:
a. A certified copy of the employee's payroll records shall be made available for
inspection or furnished to such employee or his or her authorized
representative on request.
b. A certified copy of all payroll records described herein shall be made available
for inspection or furnished upon request of the DIR.
5. Unless submitted electronically, the certified payroll records shall be on forms
provided by the Division of Labor Standards Enforcement ("DLSE") of the DIR or
shall contain the same information as the forms provided by the DLSE.
6. Any copy of records made available for inspection as copies and furnished upon
request to the public or any public agency, the City, the Division of Apprenticeship
Standards or the Division of Labor Standards Enforcement shall be marked or
obliterated in such a manner as to prevent disclosure of an individual's name,
address and social security number. The name and address of the Design -Build
Entity awarded the Contract or performing the contract shall not be marked or
obliterated.
7. In the event of noncompliance with the requirements of this Article 6.17C, the
Design -Build Entity shall have ten (10) Days in which to comply subsequent to
receipt of written notice specifying any item or actions necessary to ensure
compliance with this Article 6.17C. Should noncompliance still be evident after
such ten (10) day period, the Design -Build Entity shall, as a penalty to the City,
forfeit One Hundred Dollars ($100.00) for each day, or portion thereof, for each
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worker until strict compliance is effectuated. Upon the request of DIR, such
penalties shall be withheld from contract payments.
8. In submitting the Proposal on this Project, it shall be the Design -Build Entity's sole
responsibility to evaluate and include the cost of complying with all labor
compliance requirements under this Contract and Applicable Law in its Proposal.
9. The Design -Build Entity shall include provisions of this Article 6.17C in all
Subcontracts and require Subcontractors to comply with these provisions at no
additional cost to City.
D. Apprentices.
The Design -Build Entity's attention is directed to the provisions of Sections 1777.5,
1777.6, and 1777.7 of the Labor Code concerning employment of apprentices by
the Design -Build Entity or any Subcontractor. The Design -Build Entity shall obtain
a certificate of apprenticeship before employing any apprentice pursuant to
Sections 1777.5, 1777.6, and 1777.7 of the Labor Code. Information relative to
apprenticeship standards, wage schedules, and other requirements may be
obtained from DIR, the Administrator of Apprenticeships, San Francisco,
California, or from the Division of Apprenticeship Standards and its branch offices.
Knowing violations of Labor Code section 1777.5 will result in forfeiture not to
exceed one hundred dollars ($100.00) for each calendar day of non-compliance
pursuant to Labor Code section 1777.7.
E. Nondiscrimination.
1. Pursuant to Labor Code section 1735 and other applicable provisions of law, the
Design -Build Entity and its Subcontractors shall not discriminate against any
employee or applicant for employment because of race, color, religion, sex,
national origin, age, political affiliation, marital status, or handicap on this Work.
The Design -Build Entity will take affirmative action to insure that employees are
treated during employment or training without regard to their race, color, religion,
sex, national origin, age, political affiliation, marital status, or handicap.
F. Workers' Compensation.
1. Pursuant to Labor Code section 1860, Design -Build Entity shall secure the
payment of workers' compensation to its employees in accordance with the
provisions of Labor Code section 3700. Prior to commencement of work, Design -
Build Entity shall sign and file with City the following certification:
"I am aware of the provisions of Section 3700 of the Labor Code which
require every employer to be insured against liability for workers'
compensation or to undertake self-insurance in accordance with the
provisions of that code, and I will comply with such provisions before
commencing the performance of the work of this contract."
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G. Public Works Registration.
1. Pursuant to Labor Code sections 1725.5 and 1771.1, the Design -Build Entity and
its Subcontractors must be registered.with the Department of Industrial Relations
prior to the execution of a contract to perform public works. By entering into this
Contract, Design -Build Entity represents that it is aware of the registration
requirement and is currently registered with the DIR. Design -Build Entity shall
maintain a current registration for the duration of the Project. Design -Build Entity
shall further include the requirements of Labor Code sections 1725.5 and 1771.1
in any Subcontract and ensure that all Subcontractors are registered at the time
this Contract is entered into and maintain registration for the duration of the Project.
6.18 Debarment
A. Contractors or subcontractors may not perform work on a public works project with
a subcontractor who is ineligible to perform work on a public project pursuant to
Labor Code section 1777.1 or 1777.7. Any contract on a public works project
entered into between a contractor and a debarred subcontractor is void as a matter
of law. A debarred subcontractor may not receive any public money for performing
work as a subcontractor on a public works contract. Any public money that is paid,
or may have been paid to a debarred subcontractor by a contractor on the project
shall be returned to the City. The Design -Build Entity shall be responsible for the
payment of wages to workers of a debarred subcontractor who has been allowed
to work on the Project.
im
6.19 Taxes.
A. The Design -Build Entity shall pay all sales, consumer, use, and other similar taxes
required to be paid in accordance with the Applicable Law of the place of the Project
which are applicable during the performance of the Project.
B. In accordance with Revenue and Taxation Code Section 107.6, the Contract
Documents may create a possessory interest subject to personal property taxation for
which the Design -Build Entity will be responsible.
C. The Design -Build Entity shall include in its Proposal the patent fees or royalties on any
patented article or process furnished or used in the Project. The Design -Build Entity
shall assume all liability and responsibility arising from the use of any patented, or
allegedly patented, materials, equipment, devices or processes used in or
incorporated with the Project, and shall defend, indemnify and hold harmless City, its
officials, officers, agents, employees and representatives from and against any and all
liabilities, demands, claims, damages, losses, costs and expenses, of whatsoever kind
or nature, arising from such use.
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6.20 Use of Site and Other Areas.
A. Limitation on Use of Site and Other Areas.
The Design -Build Entity shall confine construction equipment, the storage of
materials and equipment, and the operations of workers to the Site and other areas
permitted by Applicable Laws, and shall not unreasonably encumber the Site and
other areas with construction equipment or other materials or equipment. Design -
Build Entity shall assume full responsibility for any damage to any such land or
area, or to the City or occupant thereof, or of any adjacent land or areas resulting
from the performance of the Work.
2. Should any claim be made by any such City or occupant because of the
performance of the Work, Design -Build Entity shall promptly settle with such other
party by negotiation or otherwise resolve the claim by arbitration or other dispute
resolution proceeding or at law.
B. Removal of Debris. During the progress of the Work Design -Build Entity shall keep
the Site and other areas free from accumulations of waste materials, rubbish, and
other debris. Removal and disposal of such waste materials, rubbish, and other debris
shall conform to Applicable Laws.
C. Cleanina. Prior to Completion of the Work, Design -Build Entity shall clean the Site
and the Work and make it ready for utilization by City. At the completion of the Work
Design -Build Entity shall remove from the Site all tools, appliances, construction
equipment and machinery, and surplus materials and shall restore to original condition
all property not designated for alteration by the Contract Documents.
D. Loadina Structures. Design -Build Entity shall not load nor permit any part of any
structure to be loaded in any manner that will endanger the structure, nor shall Design -
Build Entity subject any part of the Work or adjacent property to stresses or pressures
that will endanger it.
6.21 Utilitv Usaae.
A. All temporary utilities, including but not limited to electricity, water, gas, and telephone,
used on the Work shall be furnished and paid for by Design -Build Entity. Design -Build
Entity shall provide necessary temporary distribution systems, including meters, if
necessary, from distribution points to points on the Work where the utility is needed.
Upon completion of the Work, Design -Build Entity shall remove all temporary
distribution systems.
B. Design -Build Entity shall provide necessary and adequate utilities and pay all costs for
water, electricity, gas, oil, and sewer charges required for completion of the Work,
including but not limited to startup and testing required in the Contract Documents.
C. All permanent meters installed shall be listed in the Design -Build Entity's name until
the Work is accepted.
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D. If Work is to be performed in existing City's facilities, Design -Build Entity may, to the
extent authorized by City in writing, use City's existing utilities. If Design -Build Entity
uses City utilities, it shall compensate City for utilities used.
6.22 Record Documents.
A. Design -Build Entity shall maintain in a safe place at the Site one record copy of all
Drawings, Performance Specifications, Technical Specifications, Addenda, Change
Orders, and written interpretations and clarifications in good order and annotated to
show changes made during construction. These record documents together with all
approved Samples and a counterpart of all approved Shop Drawings will be available
to City's Representative for reference. Upon completion of the Work, these record
documents, Samples, and Shop Drawings will be delivered to City. See 01 00 00 for
additional Record Drawing requirements.
6.23 Safetv and Protection.
A. Design -Build Entity shall be solely responsible for all safety precautions and programs
in connection with the Work. Such responsibility does not relieve Subcontractors of
their responsibility for the safety of persons or property in the performance of their
work, nor for compliance with applicable safety laws. Design -Build Entity shall take all
necessary precautions for the safety of, and shall provide the necessary protection to
prevent damage, injury or loss to:
1. all persons on the Site or who may be affected by the Work;
2. all the Work and materials and equipment to be incorporated therein, whether in
storage on or off the Site; and
3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks,
pavements, roadways, structures, utilities, and Underground Facilities not
designated for removal, relocation, or replacement in the course of construction.
B. Design -Build Entity shall comply with all Applicable Laws relating to the safety of
persons or property, or to the protection of persons or property from damage, injury,
or loss; and shall erect and maintain all necessary safeguards for such safety and
protection. Design -Build Entity shall notify owners of adjacent property and of
Underground Facilities and other utility owners when prosecution of the Work may
affect them, and shall cooperate with them in the protection, removal, relocation, and
replacement of their property.
C. Design -Build Entity shall comply with the applicable requirements of City's safety
programs, if any. The Special Conditions identify any City's safety programs that are
applicable to the Work.
D. Design -Build Entity shall inform City and City's Representative of the specific
requirements of Design -Build Entity's safety program with which City's and City's
Representative's employees and representatives must comply while at the Site.
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E. All damage, injury, or loss to any property caused, directly or indirectly, in whole or in
part, by Design -Build Entity, any Subcontractor, Supplier, or any other individual or
entity directly or indirectly employed by any of them to perform any of the Work, or
anyone for whose acts any of them may be liable, shall be remedied by Design -Build
Entity.
F. Design -Build Entity's duties and responsibilities for safety and for protection of the
Work shall continue until City files the Notice of Completion in accordance with
Contract Documents.
6.24 Safetv Representative.
A. Design -Build Entity shall designate an OSHA -certified and experienced safety
representative at the Project site whose duties and responsibilities shall be the
prevention of accidents and the maintaining and supervising of safety precautions and
programs. Design -Build Entity shall provide City's Representative the name and
contract information of the safety representative in writing. Design -Build Entity shall
provide City's Representative the name and contact information of the safety
representative in writing.
6.25 Hazard Communication Proarams.
A. Design -Build Entity shall be responsible for coordinating any exchange of material
safety data sheets or other hazard communication information required to be made
available to or exchanged between or among employers at the Project site in
accordance with Applicable Laws.
6.26 Emeraencies.
A. In an emergency affecting safety of life or of Work or of adjoining property, Design -
Build Entity, without special instruction or authorization from City, shall act to prevent
such threatened loss or injury; and Design -Build Entity shall so act, without appeal, if
directed or instructed by City. Any compensation claimed by Design -Build Entity on
account of emergency work shall be determined in accordance with the Contract
Documents.
6.27 Continuina The Work.
A. Design -Build Entity shall carry on the Work during negotiation of all Change Orders
and all disputes or disagreements with City. No Work shall be delayed or postponed
pending resolution of any Change Orders, disputes or disagreements, unless City and
Design -Build Entity otherwise agree in writing.
6.28 Guarantee.
A. The Design -Build Entity unconditionally guarantees all Work on the Project will be
completed in accordance with the requirements of the Contract Documents, and will
remain free of defects in workmanship and materials for a period of two (2) years from
the date of Project Completion, unless a longer guarantee period is specifically called
for in the Contract Documents. However, a shorter guarantee period shall apply to
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landscape plants, trees, turf, etc. Trees or shrubs greater than one gallon in size at the
time of planting shall be guaranteed for one (1) year, and all other plant material shall
be guaranteed for six (6) months. The Design -Build Entity shall repair or replace any
and all Work, together with any adjacent work that may have been damaged or
displaced, which was not in accordance with the requirements of the Contract
Documents, or that may be defective in its workmanship or material within the
guarantee period specified in the Contract Documents, without any expense
whatsoever to City; ordinary wear and tear and abuse excepted.
B. The Design -Build Entity further agrees, within fourteen (14) Days, or as such shorter
period as may be designated for emergency repairs, after being notified in writing by
City, of any Work not in accordance with the requirements of the Contract Documents
or any defects in the Work on the Project, that the Design -Build Entity shall commence
and execute, with due diligence, all Work necessary to fulfill the terms of the
guarantee. If City finds that the Design -Build Entity fails to perform any of the Work
under the guarantee, City may elect to have the Work completed at the Design -Build
Entity's expense and the Design -Build Entity will pay costs of the Work upon demand.
City will be entitled to all costs, including reasonable attorneys' fees and consultants'
expenses necessarily incurred upon the Design -Build Entity's refusal to pay the above
costs.
C. Notwithstanding the foregoing provisions, in the event of an emergency constituting
an immediate hazard to health or safety of City employees, property, or licensees, City
may undertake, at the Design -Build Entity's expense and without prior notice, all Work
necessary to correct such condition(s) when it is caused by Work of the Design -Build
Entity not being in accordance with the requirements of the Contract Documents.
6.29 Warrantv.
A. The Design -Build Entity warrants to City that any and all materials, equipment and
furnishings incorporated in the Project will be of good quality and new unless otherwise
required or permitted by the Contract Documents. Work not conforming to these
requirements, including substitutions not properly approved and authorized, may be
considered defective. The foregoing warranty excludes improper operation, or normal
wear and tear under normal usage under the control of City. Such warranty shall
exclude warranties relating to design, warranty of fitness, and any other express or
implied warranties other than as set forth herein or in the Contract Documents;
provided, however, that the foregoing shall not impair the rights of City to maintain an
action for breach of contract against the Design -Build Entity. Nothing contained in
these Contract Documents pertaining to warranty or guarantee shall be construed as
limiting any other rights City may have at law, including rights for latent defects under
Code of Civil Procedure Section 337.15.
6.30 Indemnification.
A. To the fullest extent allowed by law (including without limitation Civil Code Sections
2782 and 2782.8), the Design -Build Entity shall defend (with counsel of City's
choosing), indemnify and hold City, its officials, officers, agents, employees, and
representatives free and harmless from and against any and all claims, demands,
causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in
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equity, to property or persons, including wrongful death, regardless of whether the
allegations are false, fraudulent, or groundless, arising out of, related to, or in
connection with any acts, omissions or willful misconduct of Design -Build Entity, its
officials, officers, employees, agents, consultants, contractors, and Subcontractors
arising out of or in connection with the performance of the Work or this Contract,
including claims made by Subcontractors for nonpayment, and including without
limitation the payment of all consequential damages and attorney's fees and other
related costs and expenses. The Design -Build Entity shall defend, at the Design -Build
Entity's own cost, expense and risk, with counsel of City's choosing, any and all such
suits, actions or other legal proceedings of every kind that may be brought or instituted
against City, its officials, officers, agents, employees and representatives. the Design -
Build Entity shall pay and satisfy any judgment, award or decree that may be rendered
against City, its officials, officers, agents, employees and representatives, in any such
suit, action or other legal proceeding. The Design -Build Entity shall reimburse City, its
officials, officers, agents, employees and representatives for any and all legal
expenses and costs incurred by each of them in connection therewith or in enforcing
the indemnity herein provided. The Design -Build Entity agrees to pay, or reimburse
City and City's Representative, for regulatory agency or court imposed fees, fines, or
penalties imposed on City and City's Representative arising from the Design -Build
Entity's failure to complete the Project in a timely manner and/or in accordance with
the Contract Documents and any applicable permits or Applicable Laws. The Design -
Build Entity's responsibility and obligation to pay, or reimburse City and City's
Representative, for these fees, fines, or penalties shall be in addition to the
assessment of liquidated damages for late completion of the Project.
B. If the Design -Build Entity's obligation to defend, indemnify, and/or hold harmless arises
out of the Design -Build Entity's performance as a "design professional" (as that term
is defined under Civil Code Section 2782.8), then, and only to the extent required
under Civil Code Section 2782.8, which is fully incorporated herein, the Design -Build
Entity's indemnification obligation shall be limited to claims that arise out of, pertain to,
or relate to the negligence, recklessness, or willful misconduct of the Design -Build
Entity, and, upon Design -Build Entity obtaining a final adjudication by a court of
competent jurisdiction, Design -Build Entity's liability for such claim, including the cost
to defend, shall not exceed the Design -Build Entity's proportionate percentage of fault.
C. In claims against any person or entity indemnified under this Article 6.30 that are made
by an employee of the Design -Build Entity or any Subcontractor, a person indirectly
employed by the Design -Build Entity or any Subcontractor, or anyone for whose acts
the Design -Build Entity or any Subcontractor may be liable, the indemnification
obligation under this Article 6.30 shall not be limited by any limitation on amount or
type of damages, compensation, or benefits payable by or for Design -Build Entity or
any Subcontractor under workers' compensation acts, disability benefit acts, or other
employee benefit acts or any other insurance limitations.
D. The indemnification obligations under this Article 6.30 shall not be limited by any
assertion or finding that the person or entity indemnified is liable by reason of a non -
delegable duty.
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E. Joint and Several Liability. In the event the Design -Build Entity and one or more than
one other party is connected with an accident or occurrence covered by this
indemnification, then all such parties shall be jointly and severally responsible to each
of the Indemnitees for indemnification, and the ultimate responsibility among such
indemnifying parties for the loss and expense of any such indemnification shall be
resolved without jeopardy to any indemnitee listed in this Article 6.30.
6.31 Superintendent.
A. The Design -Build Entity shall employ a competent Superintendent satisfactory to City
who shall be in attendance at the Project site at all times during the performance of
the Construction Work. Superintendent shall represent the Design -Build Entity and
communications given to, and received from, Superintendent shall be binding on the
Design -Build Entity. Superintendent must be able to proficiently speak, read and write
in English. Failure to maintain a Superintendent on the Project site at all times Work
on the Project is in progress shall be considered a material breach of this Contract,
entitling City to terminate the Contract or, alternatively, issue a Suspension Order until
the Superintendent is on the Project site. If, by virtue of issuance of said Suspension
Order, the Design -Build Entity fails to complete the Contract by the Project Completion
Date, the Design -Build Entity will be assessed Liquidated Damages in accordance with
the Contract.
B. Any changes to the assignment of the Superintendent shall receive prior written
approval from City. The Superintendent may not perform the work of any trade, pick
up materials, or perform any work not directly related to the supervision and
coordination of the Construction Work at the Project site when work is in progress. In
addition, the Design -Build Entity will provide all key personnel identified in the Contract
for the time periods stipulated.
6.32 Proiect Staff inq.
A. The Design -Build Entity and each Subcontractor shall: furnish a competent and
adequate staff as necessary for the proper administration, coordination, supervision,
and superintendence of its portion of the Work on the Project; organize the
procurement of all materials and equipment so that the materials and equipment will
be available at the time they are needed for the Work; and keep an adequate force of
skilled and fit workers on the job to complete all Work on the Project in accordance
with all requirements of the Contract.
City shall have the right, but not the obligation, to require the removal from the Project
of the Design -Build Entity's Representative, or any other superintendent, staff
member, agent, or employee of any contractor, Subcontractor, material or equipment
supplier, or any other entity working on the Project. Removal may be required for any
reason designated by City, including but not limited to, failure or refusal to perform
Work on the Project in a manner acceptable to City, uncooperative or incompetent
performance on the Project, threatening the adequate or timely completion of the
Project, or threatening the safety of persons or property.
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6.33 Compliance With State Storm Water Permit for Construction.
Refer to Section 01 00 00 for information regarding compliance with State Storm Water
Permit for Construction.
6.34 Monthly Report.
The Design -Build Entity shall prepare and submit to City, during both the Construction
Documents Phase and the Construction Phase, monthly reports on the Work
accomplished during the prior monthly period. Such reports shall be prepared in a manner
and in a format approved by City. Reports shall be furnished at the time of submission of
each monthly application for payment. The monthly report shall also set forth the Design -
Build Entity's projected progress for the forthcoming month.
6.35 Other Reports.
The Design -Build Entity will cooperate with City in preparing, or causing to be prepared,
all or part of, periodic project reports required by state or federal agencies.
6.36 Notice of Labor Dispute.
A. If the Design -Build Entity has knowledge that any actual or potential labor dispute is
delaying, or threatens to delay, the timely performance of Work on the Project, the
Design -Build Entity shall immediately give written notice including all relevant
information to City.
B. The Design -Build Entity agrees to insert the substance of this Article 6.36 in any
subcontract to which a labor dispute may delay the timely performance of Work on the
Project, except that each subcontract shall provide that in the event its timely
performance is delayed or threatened by delay by any actual or potential labor dispute,
the Subcontractor shall immediately notify the next higher tier Subcontractor or the
Design -Build Entity, as the case may be, of all relevant information concerning the
dispute.
6.37 Documents and Samples At Proiect Site.
A. The Design -Build Entity shall maintain the following at the Project site:
1. One current copy of the Contract Documents (including Construction Documents),
in good order and marked to record current changes and selections made during
construction.
2. One copy of the prevailing wage rates applicable to the Project.
3. The current accepted Master Project Schedule.
4. Shop Drawings, Product Data, and Samples.
5. One current copy of all documents required by Article 6.21.
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6. All other required submittals.
These shall be available to City's Representative and shall be delivered to City's
Representative for submittal to City upon the earlier of Final Completion or termination
of the Contract.
6.38 Cuttina. Fittina, and Patchina.
A. The Design -Build Entity shall do all cutting, fitting, or patching work required to make
all parts of the Project come together properly and to allow the Project to receive or be
received by the work of Separate Contractors shown upon, or reasonably implied by,
the Contract Documents.
B. The Design -Build Entity shall not endanger the Project, or adjacent property by cutting,
digging, or otherwise. The Design -Build Entity shall not cut or alter the work of any
Separate Contractor without the prior written consent of City's Representative.
6.39 Access to Work.
A. City, City's Representative, their consultants, and other persons authorized by City will
at all times have access to the Work on the Project wherever it is in preparation or
progress. The Design -Build Entity shall provide safe and proper facilities for such
access and for inspection.
6.40 Concealed Or Unknown Conditions.
A. Except and only to the extent provided otherwise in Articles 9 and 10, by signing the
Contract, the Design -Build Entity agrees:
To bear the risk of concealed or unknown conditions, if any, which may be
encountered in performing the Contract, as described in the Contract Documents,
and/or can reasonably be inferred by the Design -Build Entity based on its
experience and expertise; and
2. That the Design -Build Entity's Guaranteed Maximum Price for the Contract was
made with full knowledge of this risk.
In agreeing to bear the risk of concealed or unknown conditions, The Design -Build
Entity understands that, except and only to the extent provided otherwise in Articles 9
and 10, concealed and/or unknown conditions shall not excuse the Design -Build Entity
from its obligation to achieve full completion of the Project within the Project
Completion Date, and shall not entitle the Design -Build Entity to an adjustment of the
Guaranteed Maximum Price.
B. If concealed or unknown conditions are encountered which require, in the opinion of
City's Representative, design details which differ from those details shown in the
Bridging Documents and City's Representative finds that such revised design details
will cause an increase or decrease in the cost of, or the time required for performance
of the Contract, and if City agrees with City's Representative's determinations, City will
issue a Change Order modifying the Contract Terms to provide for the change in
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design details and to provide for an adjustment in the Guaranteed Maximum Price
and/or Project Completion Date pursuant to Articles 9 and 10 following receipt of a
Change Order Request.
C. If the Design -Build Entity encounters concealed or unknown conditions that differ
materially from those anticipated or expected, the Design -Build Entity shall notify City's
Representative within three (3) Days in writing of such conditions so that City's
Representative can determine if such conditions require design details which differ
from those design details shown in the Bridging Documents. Design -Build Entity shall
be liable to City for any extra costs incurred as a result of the Design -Build Entity's
failure to give such notice. Design -Build Entity's failure to give such notice shall
constitute a waiver by Design -Build Entity of any additional compensation.
6.41 Liabilitv for and Repair of Damaged Work.
A. Design -Build Entity shall be liable for any and all damages and losses to the Project
(whether by fire, theft, vandalism, earthquake, flood or otherwise) prior to City's
acceptance of the Project as fully completed.
6.42 Permits. Fees. and Notices.
A. Except for the permits and approvals which are to be obtained on behalf of City or the
requirements with respect to which City is not subject, the Design -Build Entity shall
secure, and pay for, all other permits, approvals, government fees, licenses, and
inspections necessary for the proper execution and performance of Work on the
Project. The Design -Build Entity shall deliver to City all original licenses, permits, and
approvals obtained by the Design -Build Entity in connection with Work on the Project
prior to the final payment or upon termination of the Contract, whichever is earlier.
ARTICLE 7 -OTHER WORK AT THE PROJECT SITE
7.1 Related Work At Proiect Site.
A. Nothing contained in the Contract Documents shall be interpreted as granting to
Design -Build Entity exclusive occupancy at the Project site. City reserves the right to
award separate contracts for, or to perform with its own forces, construction or
operations related to the Work or other construction or operations at or affecting the
Project site, including portions of Work on the Project which have been deleted by
Change Order. The Design -Build Entity shall cooperate with City's employees or
through other direct contracts, or have other work performed by utility owners
(collectively, "Other Contractors"). If such other work is not noted in the Contract
Documents, then written notice thereof will be given to the Design -Build Entity prior to
starting any such other work. The Design -Build Entity shall participate with City and
Separate Contractors in joint review of construction schedules and Project
requirements when directed to do so. The Design -Build Entity shall make necessary
revisions to the Master Project Schedule after such joint review.
B. Design -Build Entity shall be solely responsible for all costs associated with
coordinating its Work with Separate Contractors. Design -Build Entity shall not be
entitled to additional compensation from City for damages resulting from such
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simultaneous, collateral, and essential Work. If necessary to avoid or minimize such
damage or delay, Design -Build Entity shall redeploy its work forces to other parts of
the Work, or adjust its Work schedule including reasonable acceleration of the Work.
If a portion of the Work on the Project is dependent upon the proper execution or
results of other construction or operations by City or Separate Contractors, the Design -
Build Entity shall inspect such other design or construction or operations before
proceeding with that portion of the Work on the Project. The Design -Build Entity shall
promptly report to City's Representative apparent discrepancies or defects which
render the other design, construction or operations unsuitable to receive the Work on
the Project. Unless otherwise directed by City's Representative, the Design -Build
Entity shall not proceed with the portion of the Work on the Project affected until
apparent discrepancies or defects have been corrected. Failure of the Design -Build
Entity to so report within a reasonable time after discovering such discrepancies or
defects shall constitute an acknowledgment that the other construction or operations
by City or Separate Contractors is suitable to receive the Work on the Project, except
as to defects not then reasonably discoverable.
C. Desian-Build Entitv's Resoonsibilitv. Design -Build Entity shall do all cutting, fitting, and
patching of the Work that may be required to make its several parts come together
properly and integrate with such other work.
D. Desian-Build Entitv Shall Not Endanaer Existina Work. Design -Build Entity shall not
endanger any work of Separate Contractor by cutting, excavating, or otherwise altering
their work and will only cut or alter their work with the written consent of City's
Representative and the Separate Contractor whose work will be affected.
E. Design -Build Entity shall afford each Separate Contractor proper and safe access to
the Project site, provide a reasonable opportunity for the introduction and storage of
materials and equipment and the execution of such other work, and properly
coordinate the Work with theirs. Design -Build Entity shall do all cutting, fitting, and
patching of the Work that may be required to properly connect or otherwise make its
several parts come together and properly integrate with such other work. Design -Build
Entity shall not endanger any work of others by cutting, excavating, or otherwise
altering such work; provided, however, that Design -Build Entity may cut or alter others'
work with the written consent of City's Representative and the others whose work will
be affected.
F. If the proper execution or results of any part of Design -Build Entity's Work depends
upon work performed by Separate Contractors, Design -Build Entity shall inspect such
other work and promptly report to City's Representative in writing any delays, defects,
or deficiencies in such other work that render it unavailable or unsuitable for the proper
execution and results of Design -Build Entity's Work. Design -Build Entity's failure to so
report will constitute an acceptance of such other work as fit and proper for integration
with Design -Build Entity's Work except for latent defects and deficiencies in such other
work.
G. If any claims are made by Separate Contractors arising out of Design -Build Entity's
performance of the Work, Design -Build Entity shall be responsible to immediately
resolve the dispute and indemnify City pursuant to the Contract Documents.
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7.2 Coordination.
A. If City intends to have work performed by Separate Contractors at the Project site, the
following will be set forth in the Special Conditions:
1. the individual or entity who will have authority and responsibility for coordination of
the activities among the various contractors will be identified;
2. the specific matters to be covered by such authority and responsibility will be
itemized; and
3. the extent of such authority and responsibilities will be provided.
B. Unless otherwise provided in the Special Conditions, City shall have sole authority and
responsibility for such coordination.
C. Coordination Delays. City's Representative shall arrange meetings with Separate
Contractors performing work to plan coordination of construction activities but will not
be responsible to direct coordination efforts. Any difference or conflict arising between
Design -Build Entity and any Separate Contractor shall be submitted to City's
Representative for a decision in the matter. Design -Build Entity shall comply with
direction from City's Representative whose decision on coordination matters will be
final.
7.3 For Delays by Others.
A. By entering into this Contract, Design -Build Entity acknowledges that there may be
Separate Contractors on the Project site whose work will be coordinated with that of
Design -Build Entity. Design -Build Entity expressly warrants and agrees that Design -
Build Entity will cooperate with Separate Contractors and will do nothing to delay,
hinder, or interfere with the work of Separate Contractors, City, or City's
Representative. Design -Build Entity also expressly agrees that, in the event its Work
is hindered, delayed, interfered with, or otherwise affected by a Separate Contractor,
its sole remedy will be a direct action against the Separate Contractor. Design -Build
Entity will have no remedy, and hereby expressly waives any remedy, against City or
City's Representative on account of delay, hindrance, interference, or other event
caused by Separate Contractor.
7.4 Desian-Build Entitv's Delav Or Damaae.
A. Design -Build Entity shall be liable to City and any Separate Contractor for the direct
delay and disruption costs or damages incurred by such Separate Contractor as a
result of Design -Build Entity's wrongful action or inactions.
ARTICLE 8 -SUBCONTRACTORS
8.1 Award of Subcontracts and Other Contracts for Portions of The Work.
A. All Subcontractors shall be retained in accordance with the Subletting and
Subcontracting Fair Practices Act (Public Contract Code Section 4100 et seq.).
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B. The Design -Build Entity shall not, without the consent of City: substitute any person or
entity as a Subcontractor in place of the Subcontractor designated in the Proposal; or
permit any such Subcontractor to be assigned or transferred, or allow it to be
performed by any person or entity other than the original Subcontractor listed in the
Proposal. Any assignment or substitution made without the prior written consent of
the awarding authority or not in compliance with the Subletting and Subcontracting
Fair Practices Act shall be void, and the assignees shall acquire no rights in the
Contract. Any consent, if given, shall not relieve the Design -Build Entity or its
Subcontractors from their obligations under the terms of the Contract. All requests by
the Design -Build Entity for substitution will be handled through City's Representative.
C. All portions of the Work on the Project for which Subcontractors were not listed by the
Design -Build Entity in its Proposal, shall be awarded by the Design -Build Entity
pursuant to the requirements described in this Article.
D. The Design -Build Entity shall submit to City's Representative after selecting
Subcontractors pursuant to an open and competitive process, an updated expanded
list of Subcontractors, along with their respective addresses, telephone numbers, e-
mail addresses and contractor's license numbers. The expanded list of
Subcontractors shall be provided and/or updated no later than ten (10) Days after the
date which the Design -Build Entity awards a contract for any portion of the Work to a
Subcontractor not originally listed in the Design -Build Entity's Proposal.
E. City has the right to request all documentation that supports the Design -Build Entity's
selection of a Subcontractor. City shall have the right of final approval as to the
qualifications of a Subcontractor to perform its designated scope of Work. Within City's
discretion, any Subcontractor may be deemed not qualified to perform Work on the
Project if City or City's Representative determines that the Subcontractor fails to meet
the requirements of the Contract Documents, or for any other reason.
F. The Subcontractors listed by the Design -Build Entity shall only be substituted in strict
accordance with the "Subletting and Subcontracting Fair Practices Act" and upon the
written consent of City. Only upon compliance with the "Subletting and Subcontracting
Fair Practices Act" and with the written consent of City shall a substitution be made.
G. Any increase in the cost of the Work on the Project resulting from the replacement or
substitution of a Subcontractor pursuant to this Article or as required by City or City's
Representative pursuant to this Article, shall be borne solely by the Design -Build
Entity. The Design -Build Entity shall not be entitled to any increase in Guaranteed
Maximum Price or an extension of Project Completion Date due to such replacement
or substitution.
H. The Design -Build Entity shall require, in each subcontract for any portion of Work on
the Project, the Subcontractor to indemnify City, City's Representative and its
consultants, representatives, directors, officers, agents and employees, pursuant to
the provisions set forth in Article 6.
I. Each subcontract shall preserve and protect the rights of City under the Contract
Documents, with respect to the Work to be performed by Subcontractor, so that
subcontracting thereof will not prejudice such rights. Upon the request of City, the
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Design -Build Entity shall promptly furnish to City a true, complete, and executed copy
of any subcontract. The Design -Build Entity shall cause each such subcontract to
expressly include the following requirements:
1. Subcontractor waives all rights that Subcontractor may have against City for
damages caused by fire or other perils covered by builder's risk property insurance
carried by Design -Build Entity or City, except for such rights Subcontractor may
have to the proceeds of such insurance held by City under Article 5.1.
2. City and entities and agencies designated by City will have access to and the right
to audit and the right to copy at City's cost all of Subcontractor's books, records,
contracts, correspondence, instructions, drawings, receipts, vouchers, purchase
orders, and memoranda relating to Work on the Project. Subcontractor shall
preserve all such records and other items for a period of at least 3 years after Final
Completion.
3. Subcontractor recognizes the rights of City under Article 8.3, Contingent
Assignment of Subcontracts, and agrees, upon notice from City that City has
elected to accept said assignment and to retain Subcontractor pursuant to the
terms of the subcontract, to complete the unperformed obligations under the
subcontract and, if requested by City, to execute a written Contract confirming that
Subcontractor is bound to City under the terms of the subcontract.
J.The Design -Build Entity is responsible for reviewing and coordinating the Work of and
among his Subcontractors and Design Professionals. This review and coordination
includes, but is not limited to, resolution of any inconsistencies, errors or omissions.
8.2 Contingent Assignment of Subcontracts.
A. The Design -Build Entity hereby assigns to City all its interest in first tier subcontracts
now or hereafter entered into by the Design -Build Entity for performance of any part of
the Work on the Project. The assignment will be effective upon acceptance by City in
writing and only as to those subcontracts which City designates in writing. City may
accept said assignment at any time during the course of the Work on the Project and
prior to Final Completion in the event of a suspension or termination of the Design -
Build Entity's rights under the Contract Documents. Such assignment is part of the
consideration to City for entering into the Contract with the Design -Build Entity and
may not be withdrawn prior to Final Completion.
8.3 RESERVED.
8.4 Subcontractor's Responsibilities.
Every Subcontractor is bound to the following provisions, subject to the limitations of
Article 8.1 above:
A. Subcontractors shall efficiently supervise their Work, using their best skill and
attention. Each of them shall carefully study and compare all Drawings, Performance
Specifications, and other instructions, shall at once report to the Design -Build Entity
any error or omission which any of them may discover, and shall subsequently proceed
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with the Work in accordance with instructions from the Design -Build Entity concerning
such error or omission. Each Subcontractor shall be fully responsible for and shall
bear the full risk of loss of all of its property.
B. Each Subcontractor shall at all times enforce strict discipline and good order among
its Subcontractors, material or equipment suppliers, or their agents, employees, and
invitees, and shall establish and maintain surveillance over the activities of each of the
foregoing to minimize any disturbance, damage, pollution, or unsightly conditions
relative to property areas adjacent to or in the vicinity of the Project site. The
Subcontractor shall not employ on the Project any unfit person or anyone not skilled
in the task assigned. The Design -Build Entity shall have the right to remove from the
Project any employee of a Subcontractor for any reason including, without limitation,
incompetence or carelessness.
C. Should the proper and accurate performance of the Work on the Project depend upon
the proper and accurate performance of other Work not included in its agreement,
each Subcontractor shall use all necessary means to discover any defect in such other
Work and shall allow the Design -Build Entity or other Subcontractors as the Design -
Build Entity elects a reasonable amount of time to remedy such defects. If the
Subcontractor should proceed with its Work, it shall be considered to have accepted
such other work, unless the Subcontractor shall have proceeded pursuant to
instructions in writing by the Design -Build Entity over its written objection.
D. Each Subcontractor shall submit to the Design -Build Entity, as the case may be,
promptly when requested by any of the foregoing, information with respect to the
names, responsibilities, and titles of the principal members of its staff, the adequacy
of the Subcontractor's equipment and the availability of necessary materials and
supplies. Subcontractor shall fully cooperate with Design -Build Entity in its periodic
review of the adequacy of Subcontractor's supervision, personnel, and equipment, and
the availability of necessary materials and supplies and shall promptly comply with the
requirements of the Design -Build Entity with respect thereto.
E. Each Subcontractor shall furnish at its expense its own temporary facilities and storage
except those specifically agreed to be furnished to it by the Design -Build Entity in the
subcontract. Subcontractor's material storage rooms and field offices, etc., will be
placed in locations designated by the Design -Build Entity. When it becomes
necessary due to the progress of the Project for the Subcontractor to relocate its field
operations, it will do so in an expeditious manner and at no additional cost to Design -
Build Entity or City. The construction of material storage rooms and field offices, etc.,
will be of fire resistive material only, such as concrete or gypsum block, rated drywall,
or sheet metal.
F. Each Subcontractor may be subject to the Design -Build Entity's reasonable charges
for hoisting, repair to other work caused by the fault or negligence of Subcontractor,
removal of Subcontractor's rubbish, and clean-up occasioned by Subcontractor.
G. Subcontractor shall comply with and pay any fines or penalties imposed for violation
of any applicable law, ordinance, rule, regulation, Environmental Impact Report
mitigation requirement, and lawful order of any public authority, including, without
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limitation, all OSHA and California OSHA requirements and those of other authorities
having jurisdiction of the safety of persons or property.
H. Each Subcontractor shall not display on or about the Project any sign, trademark, or
other advertisement.
Without limitation of any other right or remedy available to the Design -Build Entity under
the Contract or at law, should the Subcontractor: (1) fail to perform its portion of the
Work on the Project in a skilled and expeditious manner in accordance with the terms
of the subcontract with sufficient labor, materials, equipment, and facilities; (2) delay
the progress of the job; (3) otherwise fail in any of its obligations; (4) have a receiver
appointed for the Subcontractor; or (5) be declared bankrupt or insolvent, and such
appointment, bankruptcy, or insolvency proceeding or declaration is not set aside
within thirty (30) Days, then the Design -Build Entity, upon three (3) Days' notice to the
Subcontractor (subject to the requirements of Public Contracts Code § 4107), may
provide such labor, materials, or perform such Work and recover the cost plus profit
and overhead from monies due or to become due thereafter to the Subcontractor. The
Design -Build Entity may terminate the employment of the Subcontractor, taking
possession of its tools, materials, and equipment related to the Work on the Project
and cause the entire portion of the Subcontractor's Work to be finished either by
another Subcontractor or through the Design -Build Entity's own forces.
J.In the event of any dispute as to whether or not any portion of the Work on the Project
is within the scope of the Work to be performed by a Subcontractor, or any dispute as
to whether or not the Subcontractor is entitled to a change order for any Work
requested of it, the Subcontractor shall continue to proceed diligently with the
performance as required by the Design -Build Entity. Regardless of the size or nature
of the dispute, the Subcontractor shall not under any circumstances cease or delay
performance of its portion of Work on the Project during the existence of the dispute.
The Design -Build Entity shall continue to pay the undisputed amounts called for under
the subcontract during the existence of the dispute. Any party stopping or delaying
the progress of the Work on the Project because of a dispute shall be responsible in
damages to City, and the Design -Build Entity for any losses suffered as a result of the
delay.
K. The Design -Build Entity agrees to advise the Subcontractor if any documentation in
connection with the Subcontractor's application for payment has not been accepted or
is in any way unsatisfactory.
L. The Design -Build Entity shall require each Subcontractor to comply with all procedures
established by the Design -Build Entity for coordination among City, City's consultants,
the Design -Build Entity, and the various Subcontractors for coordination of the Work
on the Project with all local municipal authorities, government agencies, utility
companies, and any other agencies with jurisdiction over all or any portion of the Work.
The Subcontractor shall cooperate fully with all of the foregoing parties and authorities.
M. The Design -Build Entity shall require each Subcontractor to comply with all on -site
record keeping systems established by the Design -Build Entity and shall, upon the
request of the Design -Build Entity, provide the Design -Build Entity with such
information and reports as the Design -Build Entity may deem appropriate. Without
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limitation of the foregoing, the Subcontractor shall assemble all required permits and
certificates so that they are readily accessible at the Project site.
N. The specific requirements of this Article are not intended to exclude the obligation of
the Subcontractor to comply with any of the other provisions of the General Conditions
and the Contract Documents which are relevant to the proper performance of its
portion of the Work on the Project.
O. The Design -Build Entity shall require all Subcontractors to commence their Work
within two (2) Days after the Design -Build Entity provides them with a notice to begin,
and shall require all Subcontractors to diligently prosecute their Work in accordance
with the Master Project Schedule, so as to allow the Project to be totally and
adequately completed within the Project Completion Date.
ARTICLE 9 -CHANGE IN GUARANTEED MAXIMUM PRICE; CHANGE IN CONTRACT
TIMES
9.1 Contract Change Orders.
A. City, without invalidating the Contract, may order changes in the Work consisting of
additions, deletions or other revisions, and the Guaranteed Maximum Price and
Contract Time shall be adjusted accordingly. All such changes in the Work shall be
authorized by written Change Order, and shall be performed under the applicable
conditions of the Contract Documents. A Change Order signed by the Design -Build
Entity indicates the Design -Build Entity's agreement therewith, including any
adjustment in the Guaranteed Maximum Price or the Contract Times, and the full and
final settlement of all costs (direct, indirect and overhead) related to the Work
authorized by the Change Order.
B. Design -Build Entity shall promptly execute changes in the Work as directed in writing
by City even when the parties have not reached agreement on whether the change
increases the scope of Work or affects the Guaranteed Maximum Price or Contract
Time, if any. All claims for additional compensation to the Design -Build Entity shall be
presented in writing. No claim will be considered after the work in question has been
done unless a written Change Order has been issued or a timely written notice of claim
has been made by Design -Build Entity. Design -Build Entity shall not be entitled to
claim or bring suit for damages, whether for loss of profits or otherwise, on account of
any decrease or omission of any item or portion of Work to be done. Whenever any
change is made as provided for herein, such change shall be considered and treated
as though originally included in the Contract Documents, and shall be subject to all
terms, conditions and provisions of the original Contract Documents.
C. The Design -Build Entity may request a Change Order under the procedures specified
herein.
D. No changes in the work covered by this Contract shall exonerate any surety or any
bond given in connection with this Contract.
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E. A Field Order, as defined below, may be issued by City; such Field Order does not
require the agreement of the Design -Build Entity, and shall be valid with or without the
signature of the Design -Build Entity.
F. The Design -Build Entity shall proceed promptly with any changes in the Work, unless
otherwise provided in the relevant Change Order, City Directed Change Order or Field
Order.
G. A Change Order becomes a Contract Document when: (i) it is a City Directed Change
Order as described in Article 9.3; or (ii) after it has been signed by both City and the
Design -Build Entity, and states their agreement upon all of the following:
1. A change in the Work, if any.
2. The amount of an adjustment of the Guaranteed Maximum Price, if any.
3. The amount of an adjustment of the Project Completion Date, if any.
4. The terms and conditions of the Change Order are accepted as full and final
settlement of any and all claims arising out of or related to the subject of the
Change Order and the compensation set forth therein comprises the total
compensation due for the work or change defined in the Change Order, including
all impacts on any unchanged work.
9.2 Desian-Build Entitv Chanae Order Reauests.
A. The Design -Build Entity may only request changes to the Guaranteed Maximum Price
and/or Project Completion Date for Additional Work or Excusable Delays to completion
of the Project caused by the acts, errors, or omissions of City, City's Representative,
their agents or employees, or caused by unforeseen conditions or Acts of God if, and
only if, the Design -Build Entity follows the procedures specified in this Article.
B. If the Design -Build Entity asserts that the Design -Build Entity is entitled to an
adjustment of the Guaranteed Maximum Price and/or Project Completion Date as the
result of an act, error, or omission of City, or as the result of unforeseen conditions that
could not have been foreseen by the Design -Build Entity, then the Design -Build Entity
may submit a Change Order Request in a form acceptable to City, to City's
Representative.
C. A Change Order Request must state and justify the reason for the request, and specify
the amount of any requested adjustment to the Guaranteed Maximum Price and/or
Project Completion Date. Upon request of City's Representative, the Design -Build
Entity shall submit such additional information as may be requested by City's
Representative for the purpose of evaluating the Change Order Request. Such
additional information may include a cost proposal meeting the requirements of this
Article and written documentation demonstrating the Design -Build Entity's entitlement
to a time extension under Article 10. If the Change Order Request seeks an
adjustment of the Guaranteed Maximum Price for a Compensable Delay, upon request
of City's Representative, the Design -Build Entity shall submit written documentation
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demonstrating the Design -Build Entity's entitlement to such an adjustment under
Article 9.
D. A condition precedent to obtaining an adjustment of the Guaranteed Maximum Price
and/or Project Completion Date as the result of an act, error, or omission of City, City's
Representative, their agents or employees, or as the result of an unforeseen condition,
is timely submission of a Change Order Request that meets the requirements set forth
in this Article. A Change Order Request based upon such acts, errors or omissions
will be deemed timely submitted if, and only if, it is submitted within five (5) Days of
the date the Design -Build Entity discovers, or reasonably should discover, that an act,
error, or omission of City has occurred that may entitle the Design -Build Entity to an
adjustment of the Guaranteed Maximum Price and/or Project Completion Date (even
if the Design -Build Entity has not been damaged, delayed, or incurred extra cost when
the Design -Build Entity discovers, or reasonably should discover, the act, error or
omission giving rise to the Change Order Request). A Change Order Request based
upon an unforeseen condition will be deemed timely submitted if, and only if, it is
submitted within fourteen (14) Days of the date the Design -Build Entity discovers, or
reasonably should discover, the existence of an unforeseen condition that may entitle
the Design -Build Entity to an adjustment of the Guaranteed Maximum Price and/or
Project Completion Date (even if the Design -Build Entity has not been damaged,
delayed, or incurred extra cost when the Design -Build Entity discovers, or reasonably
should discover, the unforeseen condition giving rise to the Change Order Request).
Although the Design -Build Entity shall have fourteen (14) Days to submit such Change
Order Requests, the Design -Build Entity shall provide City written or oral notice of the
issue being the basis for such Change Order within fourteen (14) business days of
discovery.
E. If City's Representative issues a final decision on all or part of a Change Order
Request, the Design -Build Entity may contest the decision by filing a timely Claim
under the procedures specified in Article 14. A final decision is any decision on a
Change Order Request by City's Representative which states that it is final.
9.3 Unilateral Change Order: Field Order.
A. An City Directed Change Order is a type of Change Order which may be issued by
City and incorporated into the Contract Documents without the Design -Build Entity's
signature, where City determine that it is in City's best interest to adjust the
Guaranteed Maximum Price and/or Project Completion Date as City believes
necessary, even though no agreement has been reached between City and the
Design -Build Entity.
B. A Field Order is a preliminary to a Change Order that describes a change in the Work,
the estimated adjustments of the Guaranteed Maximum Price and/or the Project
Completion Date, if any, and orders a change in the Work before all of the terms of the
change are fully agreed upon by City and the Design -Build Entity. A Field Order must
eventually be memorialized as a Change Order or an City Directed Change Order and
incorporated into the Contract Documents.
1. A Field Order may be issued by City. If requested in writing, the Design -Build
Entity shall promptly provide City's Representative with a cost proposal, setting
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forth the proposed adjustments of the Guaranteed Maximum Price and/or the
Project Completion Date, if any, for performing the change in the Work. The Field
Order will be superseded by a Change Order which shall include the actual
adjustments, if any, of the Guaranteed Maximum Price and the Project Completion
Date, as well as the change in the Work.
2. A Field Order signed by the Design -Build Entity indicates the agreement of the
Design -Build Entity therewith, including the Design -Build Entity's agreement to the
proposed adjustments to the Guaranteed Maximum Price and/or the Project
Completion Date stated therein. Such agreement shall be effective immediately
and will be incorporated into a Change Order.
3. Upon receipt of a Field Order, the Design -Build Entity shall promptly proceed with
the change in the Work.
4. If the Design -Build Entity does not agree to the adjustment of the Guaranteed
Maximum Price set forth in a Field Order, the amount shall be determined in
accordance with the provisions of Article 9.4; and the Design -Build Entity shall
comply with the provisions of Article 9.4 regarding records and documentation of
actual costs.
9.4 Chanaes to The Guaranteed Maximum Price.
A. Process for Determinina Adiustments in the Guaranteed Maximum Price.
Chanae Order Reauest Detail. Design -Build Entity's Change Order Request shall
include all professional services, material, labor, and equipment separately priced
for each element of Work. Allowable Overhead and Profit may be added to the
total of these costs if allowed by the Contract Documents. As general guidance,
all cost documentation shall be tabulated from detailed computerized
spreadsheets in a "workbook" which will be compiled into useful summary
spreadsheets as directed by City's Representative.
a. Lump Sum Chanae Orders. By mutual acceptance of a lump sum price
negotiated on the basis of the Design -Build Entity's itemized estimate of the
anticipated costs of the Additional Work.
b. Time and Materials Chanae Orders. City may direct Design -Build Entity to
proceed with the Additional Work with payments to be made on the basis of
the actual cost of the labor and materials required to complete the Additional
Work.
2. Chanae Order Request Form. Design -Build Entity's Change Order Request shall
be on forms acceptable to City's Representative. Design -Build Entity's Change
Order Request shall certify in writing that the amounts included cover all direct,
supplemental, indirect, consequential, and cumulative costs and delays, as
applicable, and that those costs and delays would be or were necessarily incurred,
despite Design -Build Entity's reasonable and diligent efforts to mitigate them.
Mitigation efforts undertaken by Design -Build Entity must be described.
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B. Lump Sum Chanae Orders. Compensation for Lump Sum Change Orders shall be
limited to expenditures necessitated specifically by the Additional Work, and shall be
segregated as follows:
Labor. The costs of labor will be the actual cost for wages prevailing locally for
each craft or type of worker at the time the additional work is done, plus employer
payments of payroll taxes and insurance, health and welfare, pension, vacation,
apprenticeship funds, and other direct costs resulting from federal, state or local
laws, as well as assessment or benefits required by lawful collective bargaining
agreements. The use of a labor classification which would increase the cost of the
Additional Work will not be permitted unless the Design -Build Entity establishes
the necessity for such new classifications. Labor costs for equipment operators
and helpers shall be reported only when such costs are not included in the invoice
for equipment rental. Compensation for the design element of any Additional Work
as an adjustment to the Guaranteed Maximum Price, authorized by Change Order
shall be computed as specified in Section 00 42 53, Attachment 1.
2. Materials. The cost of materials shall be at invoice or lowest current price at which
such materials are locally available in the quantities involved, plus sales tax, freight
and delivery. Materials cost shall be based upon supplier or manufacturer's
invoice. If invoices or other satisfactory evidence of cost are not furnished within
fifteen (15) Days of delivery, then City shall determine the materials cost, at its sole
discretion.
3. Tool and EauiDment Use. Costs for the use of small tools, which are tools that
have a replacement value of $1,000 or less, shall be considered included in the
Overhead and Profit markups established below. Regardless of ownership, the
rates to be used in determining equipment use costs shall not exceed listed rates
prevailing locally at equipment rental agencies, or distributors, at the time the Work
is performed.
C. Time and Materials Change Orders.
1. General. The term Time and Materials means the sum of all costs reasonably and
necessarily incurred and paid by Design -Build Entity for labor, materials, and
equipment in the proper performance of Additional Work. Except as otherwise may
be agreed to in writing by City, such costs shall be in amounts no higher than those
prevailing in the locality of the Project, shall include only the following items.
2. Timely and Final Documentation.
a. Design -Build Entity must submit timesheets, materials invoices, records of
equipment hours and records of rental equipment hours to City's
Representative for an approval signature each day Additional Work is
performed. Failure to get City's Representative's approval signature each Day
may result in a waiver of Design -Build Entity's right to claim these costs.
b. All documentation of incurred costs shall be submitted by Design -Build Entity
and approved by City's Representative within three (3) Days of incurring the
cost for labor, material, equipment, and special services. Design -Build Entity's
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total actual cost shall be presented in a summary table in an electronic
spreadsheet file by labor, material, equipment, and special services (T&M
Summary Sheets). Design -Build Entity's failure to provide the T&M Summary
Sheets within three (3) Days of performance of the work will result in the
Design -Build Entity's otherwise allowable profit being reduced by 50% for that
portion of Additional Work which was not documented in a timely manner.
Design -Build Entity's failure to submit the T&M Summary Sheets within three
(3) Days of completion of the work will result in Design -Build Entity's waiver for
any reimbursement of any costs associated with the T&M Summary Sheets or
the performance of the Additional Work.
3. Labor. The costs of labor will be the actual cost substantiated by timesheets and
certified payroll for wages prevailing for each craft or type of workers performing
the Additional Work at the time the Additional Work is done, plus employer
payments of payroll taxes, workers compensation insurance, liability insurance,
health and welfare, pension, vacation, apprenticeship funds, and other direct costs
resulting from Federal, State or local laws, as well as assessments or benefits
required by lawful collective bargaining agreements. Compensation for the design
element of any Additional Work as an adjustment to the Guaranteed Maximum
Price, authorized by Change Order shall be computed as specified in Section 00
42 53, Attachment 1.
a. Eauioment Operator Exception. Labor costs for equipment operators and
helpers shall be paid only when such costs are not included in the invoice for
equipment rental.
b. Foreman Exception. The labor costs for foremen shall be proportioned to all
of their assigned work and only that applicable to the Additional Work shall be
paid. Indirect labor costs, including without limitation the superintendent,
project manager, and other labor identified in the Contract Documents will be
considered Overhead.
4. Materials. The cost of materials reported shall be itemized at invoice or lowest
current price at which materials are locally available and delivered to the Site in
the quantities involved, plus the cost of sales tax, freight, delivery, and storage.
a. Trade discounts available to the purchaser shall be credited to City
notwithstanding the fact that such discounts may not have been taken by
Design -Build Entity.
b. For materials secured by other than a direct purchase and direct billing to the
purchaser, the cost shall be deemed to be the price paid to the actual supplier
as determined by City's Representative.
c. Payment for materials from sources owned wholly or in part by the purchaser
shall not exceed the price paid by the purchaser for similar materials from said
sources on Additional Work items or the current wholesale price for such
materials delivered to the Site, whichever price is lower.
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d. If in the opinion of City's Representative the cost of materials is excessive, or
Design -Build Entity does not furnish satisfactory evidence of the cost of such
materials, then the cost shall be deemed to be the lowest current wholesale
price for the total quantity concerned delivered to the Site less trade discounts.
e. City reserves the right to furnish materials for the Additional Work and no Claim
shall be allowed by Design -Build Entity for costs of such materials or Indirect
Costs or profit on City furnished materials.
5. Equipment. Design -Build Entity will be paid for the use of equipment at the rental
rates listed for that equipment in the California Department of Transportation
publication entitled Labor Surcharge and Equipment Rental Rates, which is in
effect on the date upon which the Contract was executed. Such rental rate will be
used to compute payments for equipment whether the equipment is under Design -
Build Entity's control through direct Ownership, leasing, renting, or another method
of acquisition. The rental rate to be applied for use of each item of equipment shall
be the rate resulting in the least total cost to City for the total period of use. If it is
deemed necessary by Design -Build Entity to use equipment not listed in the
publication, an equitable rental rate for the equipment will be established by City's
Representative. Design -Build Entity may furnish cost data which might assist
City's Representative in the establishment of the rental rate.
a. All equipment shall, in the opinion of City's Representative, be in good working
condition and suitable for the purpose for which the equipment is to be used.
b. Before construction equipment is used on the Additional Work, Design -Build
Entity shall plainly stencil or stamp an identifying number thereon at a
conspicuous location, and shall furnish to City's Representative, in duplicate,
a description of the equipment and its identifying number and the scheduled
Additional Work activities planned.
c. Unless otherwise specified, manufacturer's ratings and manufacturer
approved modifications shall be used to classify equipment for the
determination of applicable rental rates. Equipment which has no direct power
unit shall be powered by a unit of at least the minimum rating recommended
by the manufacturer.
6. Rental Eauir)ment.
a. Rental Time. The rental time to be paid for equipment on the Site shall be the
time the equipment is in productive operation on the Additional Work being
performed and, in addition, shall include the time required to move the
equipment to the location of the Additional Work and return it to the original
location or to another location requiring no more time than that required to
return it to its original location; except, that moving time will not be paid if the
equipment is used on other than the Additional Work, even though located at
the site of the Additional Work.
b. Rental Time Not Allowed. Rental time will not be allowed while equipment is
inoperative due to breakdowns.
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Computation Method. The following shall be used in computing the rental time
of equipment on the Site:
(i) When hourly rates are listed, any part of an hour less than 30 minutes of
operation shall be considered to be 1/2-hour of operation, and any part of an
hour in excess of 30 minutes will be considered one hour of operation.
(ii) When daily rates are listed, any part of a day less than 4 hours operation
shall be considered to be'/2-day of operation.
7. Desian-Build Entitv-Owned EauiDment. For Design -Build Entity -owned
equipment, the allowed equipment rental rate will be limited to the monthly
equipment rental rate using a utilization rate of 173 hours per month which is found
in the rental rate source identified in the Special Conditions for rental equipment.
8. Special Services. Special work or services are defined as that Additional Work
characterized by extraordinary complexity, sophistication, or innovation or a
combination of the foregoing attributes which are unique to the construction
industry.
a. Invoices for Special Services. When City's Representative and Design -Build
Entity determine that a special service is required which cannot be performed
by the forces of Design -Build Entity or those of any of its Subcontractors, the
special service may be performed by an entity especially skilled in the
Additional Work. Invoices for special services based upon the current fair
market value thereof may be accepted without complete itemization of labor,
material, and equipment rental costs, after validation of market values by City's
Representative.
b. Discount and Allowance. All invoices for special services will be adjusted by
deducting all trade discounts offered or available, whether the discounts were
taken or not. In lieu of Overhead and Profit specified herein, a total allowance
not to exceed fifteen percent (15%) for Overhead and Profit will be added to
invoices for special services.
9. Excluded Costs. The term Time and Materials shall not include any of the following
costs or any other home or field office overhead costs, all of which are to be
considered administrative costs covered by Design -Build Entity's allowance for
Overhead and Profit:
a. Overhead Cost. Payroll costs and other compensation of Design -Build Entity's
officers, executives, principals, general managers, engineers, architects,
estimators, attorneys, auditors, accountants, purchasing and contracting
agents, timekeepers, clerks and other personnel employed by Design -Build
Entity whether at the Site or in Design -Build Entity's principal office or any
branch office, material yard, or shop for general administration of the Additional
Work;
b. Office Expenses. Expenses of Design -Build Entity's principal and branch
offices;
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c. Capital Expenses. Any part of Design -Build Entity's capital expenses,
including interest on Design -Build Entity's capital employed for the Additional
Work and charges against Design -Build Entity for delinquent payments;
d. Negligence. Costs due to the negligence of Design -Build Entity or any
Subcontractor or Supplier, or anyone directly or indirectly employed by any of
them or for whose acts any of them may be liable, including without limitation
the correction of Defective Work, disposal of materials or equipment wrongly
supplied, and making good any damage to property;
e. Other. Other overhead or general expense costs of any kind and the cost of
any item not specifically and expressly included by the Contract Documents;
f. Small Tools. Cost of small tools valued at less than $1000 and that remain the
property of Design -Build Entity;
g. Administrative Costs. Costs associated with the preparation of Change Orders
(whether or not ultimately authorized), cost estimates, or the preparation or
filing of Claims;
h. Anticipated Lost Profits. Expenses of Design -Build Entity associated with
anticipated lost profits or lost revenues, lost income or earnings, lost interest
on earnings or unpaid retention;
i. Home Office Overhead. Costs derived from the computation of a "home office
overhead" rate by application of the Eichleay, Allegheny, burden fluctuation, or
other similar methods;
j. Special Consultants and Attornevs. Costs of special consultants or attorneys,
whether or not in the direct employ of Design -Build Entity, employed for
services specifically related to the resolution of a Claim, dispute, or other matter
arising out of or relating to the performance of the Additional Work; or
k. Design Costs. Design costs in excess of the hourly rates included in Section
00 42 53, Attachment 1.
10.Overhead and Profit for Lump Sum and Time and Materials Change Orders.
a. The mark-up to be added to Lump Sum and Time and Materials Change
Orders for Overhead (including supervision) and Profit on Additional Work shall
be determined in accordance with the following provisions:
(i) "Net Cost" is defined as the actual costs of labor, materials and tools and
equipment as defined herein only, excluding Overhead and Profit. The
costs of applicable insurance and bond premium will be reimbursed to the
Design -Build Entity and Subcontractors at cost only, without mark-up and
in no case shall the total costs exceed one and one-half percent (1.5%) of
Net Cost. Design -Build Entity shall provide City with documentation of the
costs, including not limited to payroll records, invoices, and such other
information as City may reasonably request.
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(ii) For Work performed by the Design -Build Entity's forces the added cost for
overhead and profit shall not exceed fifteen (15%) percent of the Net Cost
of the Work.
(iii) For Work performed by a Subcontractor, the added cost for overhead and
profit shall not exceed fifteen (15%) percent of the Subcontractor's Net Cost
of the Work, to which the Design -Build Entity may add five (5%) percent of
the Subcontractor's Net Cost.
(iv) For Work performed by a sub -subcontractor the added cost for overhead
and profit shall not exceed fifteen (15 %) percent of the Net Cost for Work,
to which the subcontractor and Design -Build Entity may each add an
additional five (5 %) percent of the Net Cost of the lower tier subcontractor.
(v) No additional markup will be allowed for lower tier subcontractors, and in
no case shall the added cost for overhead and profit payable by City
exceed twenty-five (25%) percent of the Net Cost, as defined herein, of the
party that performs the Work.
(vi) No additional markup will be allowed for design costs computed as
specified in Section 00 42 53, Attachment 1.
b. All of the following costs are included in the markups for overhead and profit
described above, and Design -Build Entity shall not receive any additional
compensation for: Submittals, drawings: field drawings, Shop Drawings,
including submissions of drawings; field inspection; General Superintendence;
General administration and preparation of cost proposals, schedule analysis,
Change Orders, and other supporting documentation; computer services;
reproduction services; Salaries of project engineer, superintendent,
timekeeper, storekeeper, and secretaries; Janitorial services; Small tools,
incidentals and consumables; Temporary on Site facilities (Offices,
Telephones, Internet access, Plumbing, Electrical Power, lighting; Platforms,
Fencing, Water), Jobsite and Home office overhead or other expenses;
vehicles and fuel used for work otherwise included in the Contract Documents;
Surveying; Estimating; Protection of Work; Handling and disposal fees; Final
cleanup; Other incidental Work; Related warranties.
D. Change for Compensable Delay.
1. The Guaranteed Maximum Price will be adjusted for Compensable Delay, which
for the purposes of this Article exists if, and only if, the Design -Build Entity
demonstrates that all of the following four conditions are met:
a. Condition Number One: The delay results in an extension of the Project
Completion Date pursuant to Article 10.
b. Condition Number Two.: The delay is caused solely by one, or more of the
following:
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(i) An error or omission in the Contract Documents caused by City and not as
a result of the Design -Build Entity's failure to conform to bridging
documents, performance standards, Construction Documents, or Contract
Documents; or
(ii) City's decision to change the Work, where such decision is not the result
of any default or misconduct of the Design -Build Entity; or
(iii) City's decision to suspend Work on the Project, where such decision is not
the result of any default or misconduct of the Design -Build Entity; or
(iv) The failure of City, City's Representative or Separate Contractors to timely
perform any contract obligation where the failure to so perform is not the
result of any default or misconduct of the Design -Build Entity.
c. Condition Number Three: The delay is not concurrent with a delay that is:
(i) Critical under Article 10; and
(ii) Caused by an event not listed in this Article 9.4D(1)(b).
d. Condition Number Four: The delay is not caused, in whole or in part, by an
event not listed in Article 9.4D(1)(b).
2. For each day of delay that meets all four conditions prescribed in Article 9.4(D)(1),
the Guaranteed Maximum Price will be adjusted in accordance with the Reverse
Liquidated Damages specified in Section 00 73 13.
3. Except as provided in Articles 9 and 10, the Design -Build Entity shall have no claim
for damage or compensation for any delay, interruption, hindrance, or disruption.
The Reverse Liquidated Damages specified in Section 00 73 13 will be full and
final compensation for any compensable delay.
4. If for any reason one or more of the conditions prescribed in
Article 9.4(D)(1) is held legally unenforceable, the remaining conditions must be
met as a condition to obtaining an adjustment of the Guaranteed Maximum Price.
9.5 City Reservation of Rights.
A. By signing the Contract, the parties agree that City has the right to do any or all of the
following, which are reasonable and within the contemplation of the parties:
1. To order changes in the Work, including without limitation:
a. Changes to correct errors or omissions caused by City, if any, in the Contract
Documents.
b. Changes resulting from City's decision to change the Work subsequent to
execution of the Contract.
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c. Changes due to unforeseen conditions.
2. To suspend Work on the Project or any part thereof.
3. To delay Work on the Project, including without limitation, delays resulting from the
failure of City or City's Representative to timely perform any Contract obligation
and delays for City's convenience.
ARTICLE 10 -PROJECT COMPLETION DATE
10.1 Commencement of Work On The Proiect.
A. The date of commencement of the Work shall be set forth in the Notice to Proceed.
The date of commencement for the Work shall not be postponed by the failure of the
Design -Build Entity, Subcontractors, or of persons or firms for whom the Design -Build
Entity is responsible, to act.
10.2 Proaress and ComDletion.
A. By signing the Contract:
The Design -Build Entity represents to City that the Project Completion Date is
reasonable for performing the Work and that the Design -Build Entity is able to
perform and complete the Work within the Project Completion Date.
2. The Design -Build Entity agrees that City is purchasing the right to have the Design -
Build Entity present on the Project for the full duration of the time period necessary
to complete the Work described in the RFP.
B. The Design -Build Entity shall not, except by agreement or instruction of City in writing,
commence operations on the Project site or elsewhere prior to the effective date of
insurance required by Article 5.1 to be furnished by the Design -Build Entity. The date
of commencement and the Project Completion Date shall not be changed by the
effective date of such insurance.
C. The Design -Build Entity shall proceed expeditiously with adequate forces and shall
achieve full completion of the Work by the Project Completion Date. If City's
Representative determines and notifies the Design -Build Entity that the Design -Build
Entity's progress is such that the Design -Build Entity will not achieve full completion of
the Work by the Project Completion Date, the Design -Build Entity shall immediately
and at no additional cost to City, take all measures necessary, including working such
overtime, additional shifts, Sundays, or holidays as may be required to ensure that the
entire Project is completed within the Project Completion Date. Upon receipt of such
notice from City's representative, the Design -Build Entity shall immediately notify City's
Representative of all measures to be taken to ensure full completion of the Work within
the Project Completion Date. The Design -Build Entity shall reimburse City for any
extra costs or expenses (including the reasonable value of any services provided by
City's employees) incurred by City as the result of such measures.
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10.3 Delay.
A. There are two kinds of delay, Excusable Delay (which may be compensable or non-
compensable) and Unexcusable Delay. Only Excusable Delay, that meets the
requirements specified herein may result in the adjustment of the Project Completion
Date, and/or the Guaranteed Maximum Price and may be compensated as Additional
Work as described below. All other delay(s) are Unexcusable, and except and only to
the extent provided otherwise in Articles 9 and 10, by signing the Contract, the Design -
Build Entity agrees:
1. to bear the risk of non-compensable and Unexcusable Delays to completion of the
Work on the Project; and
2. that the Proposal was made with full knowledge of this risk.
B. In agreeing to bear the risk of Unexcusable Delays to completion of the Work on the
Project, the Design -Build Entity understands that, except and only to the extent
provided otherwise in Articles 9 and 10, the occurrence of events that result in any
delay in completion of the Work on the Project shall not excuse the Design -Build Entity
from its obligation to achieve full completion of the Work on the Project within the
Project Completion Date, and shall not entitle the Design -Build Entity to an adjustment
of the Guaranteed Maximum Price.
10.4 Adiustment of The Proiect Completion Date for Excusable Delay.
A. The Project Completion Date will be extended for an Excusable Delay, if and only if,
the Design -Build Entity demonstrates that all of the following six conditions are met:
Condition Number One: When the event causing the delay commences, the
Design -Build Entity has complied with all Contract requirements for maintaining,
submitting, and updating Project Schedules.
2. Condition Number Two: The delay is critical. A delay is critical if and only to the
extent it delays a Work activity that cannot be delayed without delaying completion
of the entire Project beyond the Project Completion Date. Additionally:
a. If the Master Project Schedule shows completion of the Project before the
Project Completion Date, a delay is critical if and only to the extent the delay
pushes completion of the entire project to a date that is beyond the Project
Completion Date.
b. When two or more delays occur concurrently, and each such concurrent delay
by itself without consideration of the other delays would be critical, then all such
concurrent delays shall be considered critical. For the purpose of determining
whether and to what extent the Project Completion Date should be adjusted
pursuant to Article 10.46, such concurrent critical delays shall be treated as a
single delay which commences at the start of the delay that begins first and
terminates at the cessation of the delay that ends last.
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3. Condition Number Three: The delay is supported by the Master Project Schedule
(or, if appropriate, the Preliminary Schedule), current at the commencement of the
event giving rise to the delay. A delay is supported only to the extent the Master
Project Schedule (or, if appropriate, the Preliminary Schedule) corroborates that it
causes a delay to completion of the entire Project beyond the Project Completion
Date because of its effect on the operation referred to in Article 10.4A(2).
4. Condition Number Four: Within fourteen (14) Days of the date the Design -Build
Entity discovers or reasonably should discover an act, error, omission or
unforeseen condition causing the delay, (even if the Design -Build Entity has not
been delayed when the Design -Build Entity discovers or reasonably should
discover the act, error, omission or unforeseen condition giving rise to the delay)
the Design -Build Entity submits a timely Change Order Request that meets the
requirements of Article 9.
5. Condition Number Five: The delay is not caused by:
a. A naturally occurring unforeseen site condition not anticipated in the Contract
Documents (e.g., unanticipated naturally occurring rock or sand); or
b. The financial inability, misconduct or default of the Design -Build Entity, a
Subcontractor or supplier; or
c. The unavailability of materials or parts, as long as such materials or parts were
timely ordered by Design -Build Entity within thirty (30) Days of the issuance of
the Notice to Proceed; or
d. An error or omission in the Contract Documents caused by the Design -Build
Entity or the Design -Build Entity's design consultants.
6. Condition Number Six: The delay is caused by:
a. Fire; or
b. Strikes, boycotts, or like obstructive actions by employees or labor
organizations; or
c. Acts of God, including earthquakes in excess of a magnitude of 3.5 on the
Richter Scale, tidal waves, floods, unusually severe weather, epidemic, or
other severe natural disaster; or
d. A man made (not naturally occurring) unforeseen site condition such as buried
utility lines, pipes, and the like; or
e. An error or omission in the Contract Documents caused by City; or
f. City's decision to change the Work, where such decision is not the result of any
default or misconduct of the Design -Build Entity; or
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g. City's decision to suspend the Work on the Project, where such decision is not
the result of any default or misconduct of the Design -Build Entity; or
h. The failure of City, City's representative or a Separate Contractor to timely
perform any Contract obligation unless such failure is due to the Design -Build
Entity's default or misconduct.
B. If and only if a delay meets all six conditions prescribed in Article 10.4A, then the
Project Completion Date will be extended by the number of days completion of the
entire Project is delayed beyond the Project Completion Date for full completion of the
Work on the Project.
C. If for any reason one or more of the six conditions prescribed in Article 10.4A is held
legally unenforceable, then all remaining conditions must be met as a condition to
obtaining an extension of the Project Completion Date under Article 10.4B.
10.5 Non-Compensable Delav
A. For Excusable, non-compensable delay, the extension of the Project Completion Date
pursuant to Article 10.4 above, shall constitute full and final consideration to the
Design -Build Entity for the delay.
10.6 Compensable Delay.
A. Subject to the limitations set forth in Article 10.7, below, any adjustment of the
Guaranteed Maximum Price as the result of Compensable Delay shall be limited to
the amounts specified in Article 9.
10.7 No Damaaes for Reasonable Delay.
A. City's liability to the Design -Build Entity for delays for which City is responsible shall
be limited to only an extension of the Project Completion Date unless such delays
were unreasonable under the circumstances. In no case shall City be liable for any
costs which are borne by the Design -Build Entity in the regular course of business,
including, but not limited to, home office overhead and other ongoing costs.
B. Damages caused by unreasonable City delay that impact the critical path, including
delays caused by items that are the responsibility of City pursuant to Government
Code section 4215, shall be compensated at the Reverse Liquidated Damages rate
established in Section 00 73 13, no other calculations, proportions or formulas shall
be used to calculate any delay damages.
C. City and City's Representative, and the officers, directors, members, partners,
employees, agents, consultants, or subcontractors of each of them, shall not be liable
to Design -Build Entity for any claims, costs, losses, or damages (including but not
limited to all fees and charges of engineers, architects, attorneys, and other
professionals and all court or arbitration or other dispute resolution costs) sustained
by Design -Build Entity on or in connection with any other project or anticipated project.
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ARTICLE 11 -TEST AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF
DEFECTIVE WORK; NOTICE OF DEFECTS
11.1 Notice of Defective Work.
A. Prompt notice of all Defective Work of which City or City's Representative has actual
knowledge will be given to Design -Build Entity. Defective Work may be rejected,
corrected, or accepted as provided in the Contract Documents.
11.2 Access to Work.
A. City, City's Representative, their consultants and other representatives and personnel,
independent testing laboratories, and governmental agencies with jurisdictional
interests will have access to the Project site and the Work at reasonable times for their
observation, inspection, and testing. Design -Build Entity shall provide them proper and
safe conditions for such access and advise them of Design -Build Entity's safety
procedures and programs.
11.3 Tests and Inspections.
A. Design -Build Entity shall give City's Representative timely notice of readiness of the
Work for all required inspections, tests, or approvals and shall cooperate with
inspection and testing personnel to facilitate required inspections or tests.
B. Except as provided by the Contract Documents, City shall employ and pay for the
services of an independent testing laboratory to perform all inspections, tests, or
approvals required by the Contract Documents.
C. If Applicable Laws of any public body having jurisdiction require any Work (or part
thereof) specifically to be inspected, tested, or approved by an employee or other
representative of such public body, Design -Build Entity shall assume full responsibility
for arranging and obtaining such inspections, tests, or approvals, pay all costs in
connection therewith, and furnish City's Representative the required certificates of
inspection or approval.
D. Design -Build Entity shall be responsible for arranging and obtaining and shall pay all
costs in connection with any inspections, tests, or approvals required for City and City's
Representative's acceptance of materials or equipment to be incorporated in the Work;
or acceptance of materials, mix designs, or equipment submitted for approval prior to
Design -Build Entity's purchase thereof for incorporation in the Work. Such inspections,
tests, or approvals shall be performed by organizations acceptable to City.
E. City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m.
Monday through Friday. Inspection before or after this time will be charged to the
contractor as reimbursable inspection time. Inspections on weekends requires two
days' notice for review and approval. Upon written request and approval the 8.5 hour
working day may be changed to other limits subject to City ordinance.
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11.4 Uncoverina Work.
A. If any Work (or the work of others) that is to be inspected, tested, or approved is
covered by Design -Build Entity without written concurrence of City's Representative,
Design -Build Entity shall, if requested by City's Representative, uncover such Work
for observation.
B. Uncovering Work shall be at Design -Build Entity's expense unless Design -Build Entity
has given City's Representative timely notice of Design -Build Entity's intention to cover
the same and City's Representative has not acted with reasonable promptness in
response to such notice.
C. If Design -Build Entity has given City's Representative timely notice of Design -Build
Entity's intention to cover the work and City's Representative has not acted with
reasonable promptness in response to such notice, and City's Representative later
considers it necessary or advisable that covered Work be observed by City's
Representative or inspected or tested by others, Design -Build Entity, at City's
Representative's request, shall uncover, expose, or otherwise make available for
observation, inspection, or testing as City's Representative may require, that portion
of the Work in question, furnishing all necessary labor, material, and equipment.
If it is found that the uncovered Work is defective, Design -Build Entity shall pay all
claims, costs, losses, and damages (including but not limited to all fees and
charges of engineers, architects, attorneys, and other professionals and all court
or arbitration or other dispute resolution costs) arising out of or relating to such
uncovering, exposure, observation, inspection, and testing, and of satisfactory
replacement or reconstruction (including but not limited to all costs of repair or
replacement of work of others); and City shall be entitled to an appropriate
decrease in the GMP.
2. If the uncovered Work is not found to be defective, Design -Build Entity shall be
allowed an increase in the GMP and/or an extension of the Contract Times, directly
attributable to such uncovering, exposure, observation, inspection, testing,
replacement, and reconstruction.
11.5 Citv Mav Stop The Work.
A. If the Work is defective, City may in its sole discretion order Design -Build Entity to stop
the Work, or any portion thereof, until the cause for such order has been eliminated.
All delays associated with the stop Work order will be the responsibility of the Design -
Build Entity.
11.6 Correction of Defective Work and Guarantee to Repair Period.,
A. Promptly after receipt of written notice, Design -Build Entity shall correct all Defective
Work, whether or not fabricated, installed, or completed, or, if the Work has been
rejected by City or City's Representative, remove it from the Project and replace it with
Work that is not defective. Design -Build Entity shall pay all claims, costs, losses, and
damages (including but not limited to all fees and charges of engineers, architects,
attorneys, and other professionals and all court or arbitration or other dispute
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resolution costs) arising out of or relating to such correction or removal (including but
not limited to all costs of repair or replacement of work of others).
B. The term "Guarantee to Repair Period" means a period of two (2) years, unless a
longer period of time is specified, commencing as follows:
1. For any Construction Work not described as incomplete on the date of Project
Completion.
2. For space beneficially occupied or for separate systems fully utilized prior to
Substantial Completion pursuant to Article 12.6, from the first date of such
Beneficial Occupancy or actual use, as established in a Certificate of Beneficial
Occupancy.
3. For all Construction Work other than 1. or 2. above, from the date of Final
Completion.
C. When correcting Defective, Design -Build Entity shall take no action that would void or
otherwise impair City's special warranty and guarantee, if any, on said Work.
D. The Design -Build Entity shall (1) correct Defective Work that becomes apparent during
the progress of the Work on the Project or during the Guarantee to Repair Period and
(2) replace, repair, or restore to City's satisfaction any other parts of the Work on the
Project and any other real or personal property which is damaged or destroyed as a
result of Defective Work or the correction of Defective Work. The Design -Build Entity
shall promptly commence such correction, replacement, repair, or restoration upon
notice from City's Representative or City, but in no case later than fourteen (14) Days
after receipt of such notice; and the Design -Build Entity shall diligently and
continuously prosecute such correction to completion. The Design -Build Entity shall
bear all costs of such correction, replacement, repair, or restoration, and all Losses
resulting from such Defective Work, including additional testing, inspection, and
compensation for City's Representative's services and expenses. The Design -Build
Entity shall perform corrective Work on the Project at such times that are acceptable
to City and in such a manner as to avoid, to the extent practicable, disruption to City's
activities.
E. If immediate correction of Defective Work is required for life safety or the protection of
property and is performed by City or Separate Contractors, the Design -Build Entity
shall pay to City all reasonable costs of correcting such Defective Work. The Design -
Build Entity shall replace, repair, or restore to City's satisfaction any other parts of the
Construction Work and any other real or personal property which is damaged or
destroyed as a result of such Defective Work or the correction of such Defective Work.
F. The Design -Build Entity shall remove from the Project site portions of the Construction
Work and materials which are not in accordance with the Contract Documents and
which are neither corrected by the Design -Build Entity nor accepted by City.
G. The Design -Build Entity's obligations under this Article are in addition to and not in
limitation of its standard of cared owed on the Project to City under Article 6 or any
other obligation of the Design -Build Entity under the Contract Documents.
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Enforcement of the Design -Build Entity's express warranties and guarantees to repair
contained in the Contract Documents shall be in addition to and not in limitation of any
other rights or remedies City may have under the Contract Documents or at law or in
equity for Defective Work. Nothing contained in this Article shall be construed to
establish a period of limitation with respect to other obligations of the Design -Build
Entity under the Contract Documents. Establishment of the Guarantee to Repair
Period relates only to the specific obligation of the Design -Build Entity to correct the
Work on the Project and in no way limits either the Design -Build Entity's liability for
Defective Work or the time within which proceedings may be commenced to enforce
the Design -Build Entity's obligations under the Contract Documents.
H. If the Design -Build Entity fails to carry out the Work in accordance with the Contract
Documents, fails to provide sufficient labor, materials, equipment, tools, and services,
with respect to either the Schematic Design or Construction phases, to maintain the
Contract Schedule, or otherwise fails to comply with any material term of the Contract
Documents, and fails within ten (10) Days after receipt of notice from City to promptly
commence and thereafter diligently continue to completion the correction of such
failure, City may, without prejudice to other remedies City may have, correct such
failure at the Design -Build Entity's sole expense. In such case, City will be entitled to
deduct from payments then or thereafter due the Design -Build Entity the cost of
correcting such failure, including compensation for the additional services and
expenses of City's Representative and City's consultants made necessary thereby. If
payments then or thereafter due the Design -Build Entity are not sufficient to cover such
amounts, the Design -Build Entity shall pay the additional amount to City.
11.7 Acceptance of Defective Work.
A. If, instead of requiring correction or removal and replacement of Defective Work, City
prefers to accept it, City may do so. Design -Build Entity shall pay all claims, costs,
losses, and damages (including but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals and all court or arbitration or other
dispute resolution costs) attributable to City's evaluation of and determination to
accept such Defective Work and for the diminished value of the Work.
B. If any acceptance of Defective Work occurs prior to release of the Project retention, a
Change Order will be issued incorporating the necessary revisions in the Contract
Documents with respect to the Work, and City shall be entitled to an appropriate
decrease in the Guaranteed Maximum Price, reflecting the diminished value of Work
and all costs incurred by City.
C. If the Project retention is held in an escrow account as permitted by the Contract
Documents, Design -Build Entity will promptly alert the escrow holder, in writing, of the
amount of retention to be paid to City.
D. If the acceptance of defective Work occurs after release of the Project retention, an
appropriate amount will be paid by Design -Build Entity to City.
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11.8 Citv Mav Correct Defective Work.
A. If Design -Build Entity fails within a reasonable time after written notice from City's
Representative to correct Defective Work, or to remove and replace rejected Work as
required by City, or if Design -Build Entity fails to perform the Work in accordance with
the Contract Documents, or if Design -Build Entity fails to comply with any other
provision of the Contract Documents, City may, after seven (7) Days written notice to
Design -Build Entity, correct, or remedy any such deficiency.
B. In connection with such corrective or remedial action, City may exclude Design -Build
Entity from all or part of the Site, take possession of all or part of the Work and suspend
Design -Build Entity's services related thereto, take possession of Design -Build Entity's
tools, appliances, construction equipment and machinery at the Site, and incorporate
in the Work all materials and equipment stored at the Site or for which City has paid
Design -Build Entity but which are stored elsewhere. Design -Build Entity shall allow
City and City's Representative, and the agents, employees, other contractors, and
consultants of each of them, access to the Site to enable City to exercise the rights
and remedies to correct the defective work.
C. All claims, costs, losses, and damages (including but not limited to all fees and charges
of engineers, architects, attorneys, and other professionals and all court or arbitration
or other dispute resolution costs) incurred or sustained by City correcting the defective
work will be charged against Design -Build Entity, and a Change Order will be issued
incorporating the necessary revisions in the Contract Documents with respect to the
Work; and City shall be entitled to an appropriate decrease in the GMP.
D. Such claims, costs, losses and damages will include but not be limited to all costs of
repair, or replacement of work of others destroyed or damaged by correction, removal,
or replacement of defective Work.
E. If the Change Order is executed after all payments under the Contract have been paid
by City and the Project Retention is held in an escrow account as permitted by the
Contract Documents, Design -Build Entity will promptly alert the escrow holder, in
writing, of the amount of Retention to be paid to City.
F. If the Change Order is executed after release of the Project Retention, an appropriate
amount will be paid by Design -Build Entity to City.
G. Design -Build Entity shall not be allowed an extension of the Contract Times because
of any delay in the performance of the Work attributable to City correcting defective
work.
11.9 Warranty Period.
A. If within two (2) years after commencement of the Warranty, or such longer period of
time as may be prescribed by the terms of any applicable special guarantee required
by the Contract Documents or by any specific provision of the Contract Documents,
any Work is found to be defective or not performing suitably for its intended use, or if
the repair of any damages to the Site or areas made available for Design -Build Entity's
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use during the performance of the Work is found to be defective, Design -Build Entity
shall promptly, without cost to City and in accordance with City's written instructions:
1. repair such defective land or areas;
2. correct such defective or non -performing work;
3. if the Defective Work has been rejected by City pursuant to the Contract
Documents, remove it from the Project and replace it with Work that is not
defective; and
4. satisfactorily correct or repair or remove and replace any damage to other Work,
to the work of others or other land or areas resulting therefrom.
B. If Design -Build Entity does not promptly comply with the terms of City's written
instructions, or in an emergency where delay would cause serious risk of loss or
damage, City may have the Defective Work corrected or repaired or may have the
rejected Work removed and replaced. All claims, costs, losses, and damages
(including but not limited to all fees and charges of engineers, architects, attorneys,
and other professionals and all court or arbitration or other dispute resolution costs)
arising out of or relating to such correction or repair or such removal and replacement
(including but not limited to all costs of repair or replacement of work of others) will be
paid by Design -Build Entity in accordance with Section 00 72 13, Article 11.1.E.
C. Where Defective Work (or damage to other Work resulting therefrom) has been
corrected or removed and replaced, the Warranty period hereunder with respect to
such Work shall be extended for an additional period of one (1) year after such
correction or removal and replacement has been satisfactorily completed.
D. Design -Build Entity's obligations under this Article are in addition to any other
obligation or warranty and do not limit City's rights and remedies pursuant to California
Code of Civil Procedure sections 337.10 and 337.15. or any other Applicable Law.
ARTICLE 12 -PAYMENTS TO DESIGN -BUILD ENTITY AND COMPLETION
12.1 Progress Pavments.
The Cost -Loaded CPM Progress Schedule will serve as the basis for progress payments
and will be incorporated into a form of Application for Payment acceptable to City's
Representative. Progress payments on account of Unit Price Work will be based on the
number of units completed.
A. Applications for Pavments.
1. By the twenty-fifth (25th) day of each month Design -Build Entity shall submit to
City's Representative for review an Application for Payment filled out and signed
by Design -Build Entity covering the Work completed as of the date of the
Application for Payment and accompanied by such supporting documentation as
is required by the Contract Documents. If payment is requested on the basis of
materials and equipment not incorporated in the Work but delivered and suitably
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stored at the Site or at another location agreed to in writing, the Application for
Payment shall also be accompanied by a bill of sale, invoice, or other
documentation warranting that City has received the materials and equipment free
and clear of all Liens and evidence that the materials and equipment are covered
by appropriate property insurance or other arrangements to protect City's interest
therein, all of which must be satisfactory to City.
2. Beginning with the second Application for Payment, each Application shall include
an affidavit executed by the Design -Build Entity stating that it has paid all amounts
due on account of the Work paid by City in the prior Applications for Payment.
3. The amount of retainage with respect to progress payments will be as set forth in
the Special Conditions.
B. Review of Applications.
1. City's Representative will either indicate in writing a recommendation of payment
to City or return the Application for Payment to Design -Build Entity indicating in
writing City's Representative's reasons for refusing to recommend payment. In the
latter case, Design -Build Entity may make the necessary corrections and resubmit
the Application for Payment.
2. By recommending any such payment City's Representative will not thereby be
deemed to have represented that:
a. inspections made to check the quality or the quantity of the Work as it has been
performed have been exhaustive, extended to every aspect of the Work in
progress, or involved detailed inspections of the Work beyond the
responsibilities specifically assigned to City's Representative in the Contract
Documents; or
b. there may not be other matters or issues between the parties that might entitle
Design -Build Entity to be paid additionally by City or entitle City to withhold
payment to Design -Build Entity.
3. Neither City's Representative's review of Design -Build Entity's Work for the
purposes of recommending payments nor City's Representative's
recommendation of any payment, including final payment, will impose
responsibility on City's Representative:
a. to supervise, direct, or control the Work;
b. for the means, methods, techniques, sequences, or procedures of
construction, or the safety precautions and programs incident thereto;
c. for Design -Build Entity's failure to comply with Applicable Laws applicable to
Design -Build Entity's performance of the Work;
d. to make any examination to ascertain how or for what purposes Design -Build
Entity has used the moneys paid on account of the GMP; or
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e. to determine that title to any of the Work, materials, or equipment has passed
to City free and clear of any Liens.
4. City's Representative may refuse to recommend the whole or any part of any
payment due to subsequently discovered evidence or the results of subsequent
inspections or tests. City retains the right to revise or revoke any such payment
recommendation previously made, to such extent as may be necessary in City's
opinion to protect City from loss.
C. Pavment Becomes Due.
1. Thirty (30) Days after presentation of an undisputed and properly submitted
Application for Payment to City's Representative, and subject to City's
Representative's recommendation, subject to the modifications above, the amount
recommended will become due, and when due will be paid by City to Design -Build
Entity.
D. Retention and Securities in Lieu of Retention.
1. Unless Project has been deemed substantially complex as noted in the Special
Conditions, City will retain five percent (5%) of the amount invoiced in accordance
with Applicable Laws.
2. Pursuant to Public Contract Code section 22300, Design -Build Entity may
substitute securities for any moneys withheld as a retention by City to ensure
performance under the Contract. At the request and expense of Design -Build
Entity, securities equivalent to the amount withheld shall be deposited with City, or
with a state or federally chartered bank in this state as the escrow agent, who shall
then pay those moneys to Design -Build Entity. Upon satisfactory completion of
the Contract, the securities shall be returned to Design -Build Entity.
a. Alternatively, Design -Build Entity may request, and City shall make payment of
retentions earned directly to the escrow agent selected by the Design -Build
Entity. At the expense of Design -Build Entity, Design -Build Entity may direct
the investment of the payments into securities and Design -Build Entity shall
receive the interest earned on the investments upon the same terms provided
for in Public Contract Code section 22300 for securities deposited by Design -
Build Entity. Upon satisfactory completion of the Contract, Design -Build Entity
shall receive from the escrow agent all securities, interest, and payments
received by the escrow agent when City authorizes the escrow agent to
release these funds to the Design -Build Entity, pursuant to the terms of Public
Contract Code section 22300.
3. Securities eligible for investment shall include those listed in Government Code
section 16430, bank or savings and loan certificates of deposit, interest -bearing
demand deposit accounts, standby letters of credit, or any other security mutually
agreed to by Design -Build Entity and City.
4. Design -Build Entity shall be the beneficial City of any securities substituted for
moneys withheld and shall receive any interest thereon.
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5. The escrow agreement shall be in the form of the Escrow Agreement provided as
part of the Contract Documents.
E. Citv's Reduction in Recommended Pavment.
1. In addition to reductions recommended by City's Representative, City may refuse
to make payment of the full amount recommended by City's Representative
because:
a. Claims have been made against City on account of Design -Build Entity's
performance or furnishing of the Work.
b. Stop Payment Notices or Liens have been filed in connection with the Work.
c. Defective Work not remedied.
d. Failure of Design -Build Entity to make proper payments to its subcontractors
or suppliers.
e. Completion of the Contract if there exists a reasonable doubt that the Work can
be completed for the unpaid Contract balance.
f. Damage to another contractor or third party.
g. Amounts which may be due the City for claims against Design -Build Entity.
h. Failure of Design -Build Entity to keep the record (`as -built") drawings up to
date.
i. Failure to provide updates on the construction schedule.
j. Site cleanup.
k. Failure of the Design -Build Entity to comply with requirements of the Contract
Documents.
I. Liquidated Damages.
Upon completion of the Contract, City will reduce the final Contract Price to reflect
costs charged to the Design -Build Entity, back charges or payments withheld
pursuant to the Contract Documents.
12.2 Design -Build Entitv's Warrantv of Title.
A. Design -Build Entity warrants and guarantees that title to all Work, materials, and
equipment covered by any Application for Payment, whether incorporated in the
Project or not, will pass to City no later than the time of payment free and clear of all
Liens.
12.3 Partial Utilization.
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A. City reserves the right to occupy or utilize any portion of the Work at any time before
completion, and such occupancy or use shall not constitute acceptance of any part of
Work covered by this Contract. This use shall not relieve the Design -Build Entity of its
responsibilities under the Contract.
12.4 Finallnsr)ection.
A. Upon written notice from Design -Build Entity that the entire Work is complete, City's
Representative will promptly make a final inspection with City and Design -Build Entity
and will notify Design -Build Entity in writing of all particulars in which this inspection
reveals that the Work is incomplete or defective. Design -Build Entity shall immediately
take such measures as are necessary to complete such Work or remedy such
deficiencies.
12.5 Final Acceptance.
A. After Design -Build Entity has, in the opinion of City's Representative, satisfactorily
completed all corrections identified during the final inspection and has delivered, in
accordance with the Contract Documents, all maintenance and operating instructions,
schedules, guarantees, bonds, certificates or other evidence of insurance, certificates
of inspection, marked -up record documents, and other documents required by the
Contract Documents, City shall execute and file with the County in which the Project
is located a Notice of Completion, constituting final acceptance and completion of the
Project, except as may be expressly noted.
12.6 Final Pavment.
A. Application for Pavment.
1. Upon execution of the Notice of Completion, Design -Build Entity may make
application for final payment following the procedure for progress payments.
2. The final Application for Payment shall be accompanied (except as previously
delivered) by:
a. all documentation called for in the Contract Documents, including but not
limited to the evidence of insurance;
b. consent of the surety to final payment;
c. a fully completed Conditional Waiver and Release on Final Payment.
B. City's Representative's Review of Application and Acceptance.
If, on the basis of City's Representative's observation of the Work during
construction and final inspection, and City's Representative's review of the final
Application for Payment and accompanying documentation as required by the
Contract Documents, City's Representative is satisfied that the Work has been
completed and Design -Build Entity has satisfied all other requirements for final
payment, City's Representative will indicate in writing City's Representative's
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recommendation of payment and present the Application for Payment to City for
payment. Otherwise, City's Representative will return the Application for Payment
to Design -Build Entity, indicating in writing the reasons for refusing to recommend
final payment, in which case Design -Build Entity shall make the necessary
corrections and resubmit the Application for Payment.
C. Pavment Becomes Due.
1. Within sixty (60) Days after the presentation to City's Representative of the proper
and complete final Application for Payment and accompanying documentation, the
amount recommended by City's Representative, less any sum City is entitled to
set off pursuant to the Contract Documents, will become due and will be paid by
City to Design -Build Entity.
12.7 Waiver of Claims.
A. The making and acceptance of final payment will constitute a waiver of all Claims by
Design -Build Entity against City other than those previously made in accordance with
the requirements herein and expressly acknowledged by City in writing as still
unsettled.
ARTICLE 13 -SUSPENSION OF WORK AND COMPLETION
13.1 Citv Mav Suspend Work.
A. City may, at its sole option, decide to suspend at any time the performance of all or
any portion of the Work by notice in writing to Design -Build Entity. Such notice of
suspension of Work will designate the amount and type of plant, labor, and equipment
to be committed to the Project during the period of suspension. Design -Build Entity
shall use its best efforts to utilize its plant, labor, and equipment in such a manner as
to minimize costs associated with suspension.
B. Upon receipt of any such notice, Design -Build Entity shall, unless the notice requires
otherwise:
1. Immediately discontinue Work on the date and to the extent specified in the notice;
2. Place no further orders or subcontracts for material, services, or facilities with
respect to suspended Work other than to the extent required in the notice;
3. Promptly make every reasonable effort to obtain suspension upon terms
satisfactory to City's Representative of all orders, subcontracts, and rental
agreements to the extent they relate to performance of Work suspended; and
4. Continue to protect and maintain the Work including those portions on which Work
has been suspended.
C. Except as provided by this article, as full and complete compensation for such
suspension, Design -Build Entity shall be granted an adjustment in the GMP based on
a negotiated daily rate that reflects the Design -Build Entity's actual costs associated
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with the demobilized condition of the Site (and as a result will be less than the Daily
Rate contained in the Special Conditions) and an extension of the Contract Times
equal to the number of days performance of Work is suspended; provided, however,
that no adjustment of GMP or extension of Contract Times shall be granted if the
suspension results from Design -Build Entity's non-compliance with the requirements
of the Contract.
13.2 Citv Mav Terminate for Cause.
A. City may, without prejudice to any other right or remedy, serve written notice upon
Design -Build Entity of its intention to terminate this Contract in whole or in part if the
Design -Build Entity: (i) refuses or fails to prosecute the Work or any part thereof with
such diligence as will ensure its completion within the Project Completion Date; (ii)
fails to complete the Work within the required time; (iii) files a bankruptcy petition or is
adjudged a bankruptcy; (iv) makes a general assignment for the benefit of its creditors;
(v) has a receiver appointed; (vi) refuses or fails to supply enough properly skilled
workers or proper materials to complete the Work; (vii) fails to make prompt payment
to subcontractors or for material or labor; (viii) disregards Applicable Laws, other
requirements or instructions of City; or (ix) violates any of the provisions of the Contract
Documents.
B. The Notice of Default and Intent to Terminate shall state the reasons for termination.
Unless within five (5) Days after the service of such notice, Design -Build Entity
resolves the circumstances giving rise to the Notice of Default to City's satisfaction, or
makes arrangements acceptable to City for the required corrective action, City may
terminate this Contract. In such case, Design -Build Entity shall not be entitled to
receive any further payment until the Work has been finished. City may takeover and
complete the Work by any method it may deem appropriate, including enforcement of
the Project Performance Bond. Design -Build Entity and its surety shall be liable to
City for any excess costs or other damages incurred by City to complete the Work. If
City takes over the Work, City may, without liability for so doing, take possession of
and utilize in completing the Work such materials, appliances, plant, and other property
belonging to the Design -Build Entity as may be on the Site.
13.3 Citv Mav Terminate for Convenience.
A. In addition to its right to terminate this Contract for default, City may terminate the
Contract, in whole or in part, at any time upon seven (7) Days written notice to Design -
Build Entity. The Notice of Termination shall specify that the termination is for the
convenience of City, the extent of termination, and the effective date of such
termination ("Effective Date of Termination").
B. After receipt of Notice of Termination, and except as directed by City, the Design -Build
Entity shall, regardless of any delay in determining or adjusting any amounts due under
this Termination for Convenience clause, immediately proceed with the following
obligations:
1. Stop Work as specified in the Notice.
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2. Complete any Work specified in the Notice of Termination in a least cost/shortest
time manner while still maintaining the quality called for under the Contract
Documents.
3. Leave the Site and any other property upon which the Design -Build Entity was
working in a safe and sanitary manner such that it does not pose any threat to the
public health or safety.
4. Terminate all subcontracts and purchase orders to the extent that they relate to
the portions of the Work terminated.
5. Place no further subcontracts or orders, except as necessary to complete the
remaining portion of the Work.
6. Submit to City, within fifteen (15) Days from the Notice of Termination, all of the
documentation called for by the Contract Documents to substantiate all costs
incurred by the Design -Build Entity for labor, materials and equipment through the
Notice of Termination. Any documentation substantiating costs incurred by the
Design -Build Entity solely as a result of City's exercise of its right to terminate this
Contract pursuant to this clause, which costs the Design -Build Entity is authorized
under the Contract Documents to incur, shall: (i) be submitted to and received by
City no later than thirty (30) Days after the Effective Date of the Notice of
Termination; (ii) describe the costs incurred with particularity; and (iii) be
conspicuously identified as "Termination Costs Occasioned by City's Termination
for Convenience."
7. City's total liability to Design -Build Entity by reason of the termination shall be
limited to the total (without duplication of any items) of:
a. The reasonable cost to the Design -Build Entity for all Work performed prior to
the Effective Date of Termination, including the Work done to secure the
Project for termination. Reasonable cost may not exceed the applicable
percentage completion values derived from the progress schedule and the
Cost Breakdown. Deductions shall be made for cost of materials to be retained
by the Design -Build Entity, cost of Work defectively performed, amounts
realized by sale of materials, and for other appropriate credits or offsets against
cost of Work as allowed by the Contract Documents.
b. When, in City's opinion, the cost of any item of Work is excessively high due to
costs incurred to remedy or replace defective or rejected Work, reasonable
cost to be allowed will be the estimated reasonable cost of performing the Work
in compliance with requirements of the Contract Documents and excessive
actual cost shall be disallowed.
c. Any Work required by the Termination for Convenience that is not included in
Contract Documents will be negotiated pursuant to the Contract Change Order
provisions.
d. Reasonable costs to the Design -Build Entity of handling material returned to
vendors, delivered to City or otherwise disposed of as directed by City.
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e. A reasonable allowance for the Design -Build Entity's internal administrative
costs in preparing termination claim.
f. Reasonable demobilization costs, and reasonable payments made to
Subcontractors or suppliers on account of termination.
8. In no event shall City be liable for unreasonable costs incurred by the Design -Build
Entity or subcontractors after receipt of a Notice of Termination. Such non-
recoverable costs include, but are not limited to, the cost of or anticipated profits
on Work not performed as of the date of termination, post -termination employee
salaries, unreasonable post -termination administrative expenses, post -termination
overhead or unabsorbed overhead, surety costs of any type, costs of preparing
and submitting the Design -Build Entity's termination claim, attorney fees of any
type, and all other costs relating to prosecution of a claim or lawsuit.
9. City shall have no obligation to pay the Design -Build Entity under this Article unless
and until the Design -Build Entity provides City with updated and acceptable as-
builts and Record Documents for Work completed prior to termination as required
by the Contract Documents.
10. In arriving at the amount due the Design -Build Entity under this clause there shall
be deducted in whole, or in the appropriate part(s) if the termination is partial:
a. All unliquidated advances or other payments on account previously made to
the Design -Build Entity, including without limitation all payments which are
applicable to the terminated portion of the Contract Documents,
b. Any claim City may have against the Design -Build Entity in connection with the
Work or any amounts that may be withheld in accordance with the Contract
Documents, and
c. The agreed price for, or proceeds of sale of, any materials, supplies, or other
things kept by the Design -Build Entity and not otherwise recovered by or
credited to City.
Design -Build Entity shall not be paid on account of loss of anticipated profits or
revenue or other economic loss or consequential damages arising out of or
resulting from such termination.
11. Notwithstanding any other provision of this Article, when immediate action is
necessary to protect life and safety or to reduce significant exposure or liability,
City may immediately order Design -Build Entity to cease Work until such safety or
liability issues are addressed to the satisfaction of City or the Contract is
terminated.
12. If City terminates Design -Build Entity for cause, and if it is later determined that the
termination was wrongful, such default termination shall automatically be
converted to and treated as a termination for convenience. In such event, Design -
Build Entity shall be entitled to receive only the amounts payable under this
section, and Design -Build Entity specifically waives any claim for any other
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amounts or damages, including, but not limited to, any claim for consequential
damages or lost profits.
ARTICLE 14 -CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION
14.1 Initiating Claims.
A. All Claims, except those waived pursuant to the Contract Documents, shall be referred
to City's Representative for decision. A decision by City's Representative shall be
required as a condition precedent to any exercise of any rights or remedies either may
otherwise have under the Contract Documents or by Applicable Laws in respect of
such Claims.
B. Written notice stating the general nature of each Claim shall be delivered by the
claimant to City's Representative promptly (but in no event later than fifteen (15) Days)
after the start of the event giving rise thereto. The responsibility to substantiate a Claim
shall rest with the Design -Build Entity. A Claim for an adjustment in GMP and/or the
Contract Times shall be prepared in accordance with the Contract Documents. Each
Claim shall be accompanied by claimant's written statement that the adjustment
claimed is the entire adjustment to which the claimant believes it is entitled as a result
of said event.
C. City's Representative will review each Claim and take one of the following actions in
writing:
1. deny the Claim in whole or in part; or
2. approve the Claim.
D. In the event that City's Representative does not take action on a Claim within forty-five
(45) Days after the receipt of a proper and complete Claim, the Claim shall be deemed
denied.
E. City's Representative's written action will be final and binding upon City and Design -
Build Entity, unless City or Design -Build Entity invoke the dispute resolution procedure
set forth below.
F. No Claim for an adjustment in the GMP or the Contract Times will be valid if not
submitted in accordance with this Article and failure to comply with this Article
constitutes a waiver of Design -Build Entity's Claims.
14.2 All public works claims between the Design -Build Entity and City shall be resolved
pursuant to the procedures set forth in Public Contract Code section 9204. All public
works claims of $375,000 or less which arise between the Design -Build Entity and City
shall be resolved in accordance with Public Contract Code sections 20104 et seq. and
other applicable law, unless City has elected to resolve the dispute pursuant to Public
Contract Code Section 10240 et seq.
Design -Build Entity shall timely comply with all notices and requests for additional
compensation and extensions of time, including but not limited to all requirements of
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Article 9, as a prerequisite to filing any claim governed by this Article. The failure to timely
provide any notice or request required by the Contract Documents shall constitute a waiver
of the right to these procedures.
14.3 All Claims. All claims shall be submitted in writing and accompanied by substantiating
documentation. Claims must be filed on or before the date of final payment unless other
notice requirements are provided in the contract. "Claim" means a separate demand by
the Design -Build Entity for (1) a time extension, including without limitation relief from
damages or penalties for delay assessed by City, (2) payment of money or damages
arising from work done by or on behalf of the Design -Build Entity and payment of which is
not otherwise expressly provided for or the Design -Build Entity is not otherwise entitled,
or (3) payment of an amount which is disputed by City.
14.4 All Claims. The Design -Build Entity will submit the claim justification in the following format:
A. Summary of claim merit and price, and Contract clause pursuant to which the claim is
made.
B. List of documents relating to the claim
1. Specifications
2. Drawings
3. Clarifications (Requests for Information)
4. Schedules
5. Other
C. Chronology of events and correspondence
D. Analysis of claim merit
E. Analysis of claim cost
F. Analysis of time impact analysis in CPM format
G. Cover letter and certification of validity of the claim
14.5 Citv ResDonse to Claim. Upon receipt of a Claim pursuant to this Article, City shall conduct
a reasonable review of the Claim and, within a period not to exceed 45 days of receipt of
the claim, or as extended by mutual agreement, shall provide a written statement
identifying what portion of the Claim is disputed and what portion is undisputed. Any
payment due on an undisputed portion of the Claim will be processed and made within 60
days after City issues its written response.
If City needs approval from the Council to provide Design -Build Entity a written statement
as set forth above, and the Council does not meet within the 45 days or within the mutually
agreed to extension of time following receipt of a Claim, City shall have up to three (3)
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days following the next publicly noticed meeting of the Council after the 45-day period, or
extension, expires to provide Design -Build Entity a written statement identifying the
disputed portion and the undisputed portion of the Claim.
City may request, in writing, within 30 days of receipt of the claim, any additional
documentation supporting the claim or relating to defenses or claims City may have. If
additional information is needed thereafter, it shall be provided upon mutual agreement of
the District and the claimant. City's written response shall be submitted 30 days (15 days
if the Claim is less than $50,000) after receiving the additional documentation, or within
the same period of time taken by the claimant to produce the additional information,
whichever is greater.
14.6 Meet and Confer Conference. If the Design -Build Entity disputes City's response, or if
City fails to respond within the statutory time period(s), the Design -Build Entity may so
notify City within 15 days of the receipt of the response or the failure to respond, and
demand an informal conference to meet and confer for settlement of those portions of the
Claim that remain in dispute. Upon such demand, City shall schedule a meet and confer
conference within 30 Days.
14.7 Mediation. Within 10 business days following the conclusion of the meet and confer
conference, if the claim or any portion thereof remains in dispute, City shall provide the
Design -Build Entity with a written statement identifying the portion of the claim that
remains in dispute and the portion that is undisputed. Any portion of the claim that remains
in dispute shall be submitted to nonbinding mediation. The selection of the mediator shall
be in accordance with Public Contract Code section 9204 and City and the Design -Build
Entity shall equally share the associated mediator fees. Each party will be responsible for
its own attorneys' fees and other costs incurred due to the resolution of any Claim.
14.8 Condition Precedent. Submission of a claim, properly certified, with all required supporting
documentation, and written rejection or denial of all or part of the claim by City, is a
condition precedent to any action, proceeding, litigation, suit, general conditions claim, or
demand for arbitration by Design -Build Entity.
14.9 Tort Claim Procedures.
A. In addition to any and all contract requirements pertaining to notices of and requests
for compensation or payment for extra work, disputed work, construction claims and/or
changed conditions, the Design -Build Entity must comply with the claim procedures
set forth in Government Code section 900 et seq. prior to filing any lawsuit against
City. Such Government Code claims and any subsequent lawsuit based upon the
Government Code claims shall be limited to those matters that remain unresolved after
all procedures pertaining to extra work, disputed work, construction claims, and/or
changed conditions have been followed by Design -Build Entity. If no such Government
Code claim is submitted, or if the prerequisite contractual requirements are not
otherwise satisfied as specified herein, Design -Build Entity shall be barred from
bringing and maintaining a valid lawsuit against City.
B. Except as provided herein, nothing in this article is intended nor shall be construed to
change the time periods for filing tort claims or actions specified by Chapter 1
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(commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part
3 of Division 3.6 of Title 1 of the Government Code.
14.10 Litiaation.
A. Any claims, disputes, or controversies between the parties arising out of or related to
the Contract, which have not been resolved in accordance with the procedures set
forth herein shall be resolved in a court of competent jurisdiction.
14.11 Dutv to Continue Performance.
A. Unless provided to the contrary in the Contract Documents, Design -Build Entity shall
continue to perform the Work and City shall continue to satisfy its payment obligations
to Design -Build Entity, pending the final resolution of any dispute or disagreement
between Design -Build Entity and City.
ARTICLE 15 -MISCELLANEOUS PROVISIONS
15.1 Givina Notice.
A. Whenever any provision of the Contract Documents requires the giving of written
notice, it will be deemed to have been validly given if:
1. delivered in person to the individual or to a member of the firm or to an officer of
the corporation for whom it is intended; or
2. delivered at or sent by registered or certified mail, postage prepaid, to the last
business address known to the giver of the notice.
15.2 Limitations On Citv's Responsibilities.
A. City shall not supervise, direct, or have control or authority over, nor be responsible
for, the Design -Build Entity's means, methods, techniques, sequences, or procedures
of design or construction, or the safety precautions and programs incident thereto, or
for any failure of the Design -Build Entity to comply with Applicable Laws applicable to
the performance of the Work. City will not be responsible for the Design -Build Entity's
failure to perform the Project in accordance with the Contract Documents.
15.3 Cumulative Remedies.
A. The duties and obligations imposed by these General Conditions and the rights and
remedies available hereunder to the parties hereto are in addition to, and are not to
be construed in any way as a limitation of, any rights and remedies available to any or
all of them which are otherwise imposed or available by Applicable Laws, by special
warranty or guarantee, or by other provisions of the Contract Documents. The
provisions of this Article will be as effective as if repeated specifically in the Contract
Documents in connection with each particular duty, obligation, right, and remedy to
which they apply.
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15.4 Survival of Obliaations.
A. All representations, indemnifications, warranties, and guarantees made in, required
by, or given in accordance with the Contract Documents, as well as all continuing
obligations indicated in the Contract Documents, will survive final payment,
completion, and acceptance of the Project or termination or completion of the Contract
or termination of the services of the Design -Build Entity.
15.5 Controllina Law.
A. Notwithstanding any subcontract or other contract with any Subcontractor, Supplier,
or other person or organization performing any part of the Project, this Contract shall
be governed by the law of the State of California excluding any choice of law
provisions.
15.6 Jurisdiction: Venue.
A. The Design -Build Entity and any Subcontractor, supplier, or other person or
organization performing any part of the Project agree that any action or suits at law or
in equity arising out of or related to the proposal process, award, or performance of
the Project shall be maintained in the Superior Court of Riverside County, California,
and expressly consent to the jurisdiction of said court, regardless of residence or
domicile, and agree that said court shall be a proper venue for any such action.
15.7 Headinas.
A. Article and paragraph headings are inserted for convenience only and do not constitute
parts of these General Conditions.
15.8 Citv's Riaht to Audit.
A. The Design -Build Entity shall make available to City for auditing, all relevant
accounting records and documents, and other financial data, and upon request, shall
submit true copies of requested records to City.
B. If the Design -Build Entity submits a Change Order Request or a Claim to City, City
shall have the right to audit the Design -Build Entity's books, records, documents, and
other evidence to the extent they are relevant.
C. The right to audit shall include the right to examine books, records, documents, and
other evidence and accounting procedures and practices, sufficient to discover and
verify all direct and indirect costs of whatever nature claimed to have been incurred or
anticipated to be incurred and for which the claim has been submitted, including but
not limited to job cost reports, estimates, proposals, bids, proposal papers, documents
of other work administered by the Design -Build Entity's home office, and any and all
other documentation relied upon by the Design -Build Entity to obtain this Contract.
City shall have the right to make and take copies of any records examined.
D. The right to audit shall include the right to inspect the Design -Build Entity's plans, or
such parts thereof, as may be or have been engaged in the performance of the Project.
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E. The Design -Build Entity further agrees that the right to audit encompasses all
subcontracts and is binding upon Subcontractors.
F. The right to audit provided herein shall be exercisable through such representatives
as City deems desirable during the Design -Build Entity's normal business hours at the
Design -Build Entity's office.
G. In accordance with Government Code Section 8546.7, records of both City and the
Design -Build Entity shall be subject to examination and audit by the State Auditor
General for a period of three (3) years after final payment. The Design -Build Entity
shall make available to City any of the Design -Build Entity's other documents related
to the Project immediately upon request of City. In addition to the State Auditor's rights
described above, City shall have the right to examine and audit all books, estimates,
records, contracts, documents, Proposals, subcontracts, and other data of the Design -
Build Entity (including electronic records, computations and projections) related to
negotiating, pricing, or performing the Project in order to evaluate the accuracy and
completeness of the cost or pricing data, for a period of four (4) years after final
payment.
15.9 Assianment.
A. Design -Build Entity shall not assign, transfer, convey, sublet, or otherwise dispose of
this Contract or any part thereof including any claims, without prior written consent of
City. Any assignment without the written consent of City shall be void. Any
assignment of money due or to become due under this Contract shall be subject to a
prior lien for services rendered or Material supplied for performance of Work called for
under the Contract Documents in favor of all persons, firms, or corporations rendering
such services or supplying such Materials to the extent that claims are filed pursuant
to the Civil Code, the Code of Civil Procedure or the Government Code.
B. As set forth in Public Contract Code section 7103.5, in entering into a public works
contract or a subcontract to supply goods, services, or materials pursuant to a public
works contract, the contractor or subcontractor offers and agrees to assign to the
awarding body all rights, title, and interest in and to all causes of action it may have
under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act
(Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business
and Professions Code), arising from purchases of goods, services, or materials
pursuant to the public works contract or the subcontract. This assignment shall be
made and become effective at the time the awarding body tenders final payment to
the contractor, without further acknowledgment by the parties.
15.10 All Leaal Provisions Included.
A. Design -Build Entity shall give all notices and comply with all federal, state and local
laws, ordinances, rules and regulations bearing on conduct of work as indicated and
specified by their terms. References to specific laws, rules or regulations in this
Contract are for reference purposes only, and shall not limit or affect the applicability
of provisions not specifically mentioned. If Design -Build Entity observes that drawings
and specifications are at variance therewith, he shall promptly notify City in writing and
any necessary changes shall be adjusted as provided for in this Contract for changes
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in Work. If Design -Build Entity performs any Work knowing it to be contrary to such
laws, ordinances, rules and regulations, and without such notice to City, he shall bear
all costs arising therefrom.
B. Design -Build Entity shall be responsible for familiarity with the Americans with
Disabilities Act ("ADA") (42 U.S.C. § 12101 et seq.). The Work will be performed in
compliance with ADA laws, rules and regulations. Design -Build Entity shall comply
with the Historic Building Code, including, but not limited to, as it relates to the ADA,
whenever applicable..
C. Design -Build Entity acknowledges and understands that, pursuant to Public Contract
Code section 20676, sellers of "mined material" must be on an approved list of sellers
published pursuant to Public Resources Code section 2717(b) in order to supply mined
material for this Contract.
D. No City official or representative who is authorized in such capacity and on behalf of
City to negotiate, supervise, make, accept, or approve, or to take part in negotiating,
supervising, making, accepting or approving any engineering, inspection, construction
or material supply contract or any subcontract in connection with construction of the
Work, shall be or become directly or indirectly interested financially in the Contract.
E. All provisions of law required to be inserted in the Contract or Contract Documents
pursuant to any Applicable Laws shall be and are inserted herein. If through mistake,
neglect, oversight, or otherwise, any such provision is not herein inserted or inserted
in improper form, upon the application of either party, the Contract or Contract
Documents shall be changed by City, at no increase in GMP or extension in Contract
Times, so as to strictly comply with the Applicable Laws and without prejudice to the
rights of either party hereunder.
15.11 State License Board Notice.
A. Contractors are required by law to be licensed and regulated by the Design -Build
Entity's State License Board which has jurisdiction to investigate complaints against
contractors if a complaint regarding a patent act or omission is filed within four (4)
years of the date of the alleged violation. A complaint regarding a latent act or
omission pertaining to structural defects must be filed within ten (10) years of the date
of the alleged violation. Any questions concerning a contractor may be referred to the
Registrar, the Contractors' State License Board, P.O. Box 26000, Sacramento,
California 95826.
15.12 Air Pollution Control.
A. The Design -Build Entity shall comply with all air pollution control rules, regulations,
ordinances and statutes. All containers of paint, thinner, curing compound, solvent or
liquid asphalt shall be labeled to indicate that the contents fully comply with the
applicable material requirements.
B. Without limiting the foregoing, the Design -Build Entity must fully comply with all
applicable laws, rules and regulations in furnishing or using equipment and/or
providing services, including, but not limited to, emissions limits and permitting
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CONTRACT NO. C39110
requirements imposed by the Air Quality Management District with jurisdiction over the
Project and/or California Air Resources Board (CARB). The Design -Build Entity shall
specifically be aware of the application of these limits and requirements to "portable
equipment", which definition includes any item of equipment with a fuel -powered
engine.
15.13 Noise.
A. The Design -Build Entity shall use only such equipment on the Project and in such state
of repair so that the emission of sound therefrom is within the noise tolerance level of
that equipment as established by CAL -OSHA.
B. The Design -Build Entity shall comply with the most restrictive of the following: (1) local
sound control and noise level rules, regulations and ordinances and (2) the
requirements contained in these Contract Documents, including hours of operation
requirements. No internal combustion engine shall be operated on the Project without
a muffler of the type recommended by the manufacturer. Should any muffler or other
control device sustain damage or be determined to be ineffective or defective, the
Design -Build Entity shall promptly remove the equipment and shall not return that
equipment to the Project site until the device is repaired or replaced. Noise and
vibration level requirements shall apply to all equipment on the jobsite or related to the
Project, including but not limited to, trucks, transit mixers or transit equipment that may
or may not be owned by the Design -Build Entity.
15.14 Change In Name Or Nature of Design -Build Entitv's Legal Entitv.
A. Should a change be contemplated in the name or nature of the Design -Build Entity's
legal entity, the Design -Build Entity shall first notify City in order that proper steps may
be taken to have the change reflected in the Contract Documents and all related
documents. No change of the Design -Build Entity's name or nature will affect City's
rights under the Contract Documents, including but not limited to the bonds and
insurance.
15.15 Complete Contract.
A. The Contract Documents constitute the full and complete understanding of the parties
and supersede any previous agreements or understandings, oral or written, with
respect to the subject matter hereof. The Contract may be modified only by a written
instrument signed by both parties or as otherwise provided in the Contract Documents.
15.16 Notice of Third Partv Claims.
A. Pursuant to Public Contract Code section 9201, City shall provide Design -Build Entity
with timely notification of the receipt of any third -party claim relating to the Contract.
15.17 Severabilitv of Provisions.
A. If any one or more of the provisions contained in the Contract Documents should be
invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability
Spec. No.
94 00 72 53 -- GENERAL CONDITIONS
72500.00001\32100500.2
CONTRACT NO. C39110
of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
15.18 Correction of Errors and Omissions.
A. The Design -Build Entity agrees to correct any error or omission in the Construction
Documents or Contract Documents at no additional cost to City.
15.19 Interpretation.
A. The Contract Documents shall not be construed in favor of or against any party, but
shall be construed as if all parties prepared the Contract Documents.
END OF GENERAL CONDITIONS
Spec. No. 95 00 72 53 -- GENERAL CONDITIONS
72500.00001 \32100500.2
00 73 13 — SPECIAL CONDITIONS
1.1 Engineer of Record.
A. The Architect and Engineer of Record shall be ABM Electrical and Lighting
Solutions, Inc..
1.2 Location of the Proiect.
A. The Project is located at 73-510 Fred Waring Drive, Palm Desert, CA 92260 in the
parking lot north of City Hall, adjacent to existing Electric Vehicle Chargers.
1.3 Description of the Proiect.
A. The Project consists of the items set forth below and related facilities.
1. Requirements of the Southern California Incentive Project (SCIP)
2. Scope of work and all related work set forth in the Request for Proposals (RFP)
1.4 Status of the Proiect Area and Rights-of-Way.
A. City, at its expense, will provide all rights -of -way or permits, or both, covering the
crossing of private property and public and private rights -of -way necessary for the
permanent Work; provided, however, Design -Build Entity shall, at its expense, obtain
any bonds or insurance policies or pay any fees and enter into any agreements
required by a controlling authority, e.g., Caltrans or Southern Pacific Railroad
Company, before Design -Build Entity enters upon any property or right-of-way under
the jurisdiction of any such controlling authority for the purpose of performing Work.
B. City has acquired or is negotiating to acquire any rights -of -way, or both, necessary for
the permanent Work.
C. If such permits are required, all operations of Design -Build Entity shall conform to the
restrictions, regulations, and requirements set forth in said permits, copies of which
will be included in the Contract Documents.
D. Design -Build Entity may be required, as a condition for receiving final payment, to
obtain, and provide City's Representative with copies of, executed damage releases
from the owners of public and private property whose property has been damaged by
the Work. The damage releases will be on a form provided by City.
E. Design -Build Entity shall, also, as a condition for receiving final payment, obtain, and
provide City's Representative with copies of, executed damage releases from the
owners of certain public and private property or areas which have been crossed by the
Work or otherwise affected by the Work. The damage releases will be on a form
provided by City.
Spec. No.
72500.00001\32100500.2
96 00 72 53 -- SPECIAL CONDITIONS
1.5 Desianation of Citv's Representative
A. Unless otherwise modified by City, City's Representative shall be Emily Roethler,
Project Manager.
1.6 Modification of Hours of Work
NOT USED
1.7 Site Data
A. The data provided herein is for the information of Design -Build Entity and is subject to
all limitations and conditions set forth in the Contract Documents.
B. Subsurface Exploration Data. The following data are included in the Project Manual:
1. NOT USED
C. Other Site Data. The following data are available for inspection at District's office:
1. NOT USED
1.8 Proiect Retention
A. In accordance with Public Contract Code section 7201, City will withhold 5% of each
progress payment as retention on the Project.
1.9 Liquidated Damaaes Due to Desian-Build Entitv Delay.
A. Time is of the essence. Should Design -Build Entity fail to complete all or any part of
the Work within the time specified in the Contract Documents, City will suffer damage,
the amount of which is difficult, if not impossible, to ascertain and, pursuant to the
authority of Government Code section 53069.85, City shall therefore be entitled to
$500.00 per Day as liquidated damages for each Day or part thereof that actual
completion extends beyond the time specified.
B. Liquidated damages may be deducted from progress payments due Design -Build
Entity, Project retention or may be collected directly from Design -Build Entity, or from
Design -Build Entity's surety. These provisions for liquidated damages shall not
prevent City, in case of Design -Build Entity's default, from terminating the Design -Build
Entity.
1.10 Utilitv Outages — Notices to Residents.
A. Should Design -Build Entity's operations require interruption of any utility service,
Design -Build Entity shall notify City at least ten (10) Days prior to the scheduled
outage. Design -Build Entity will notify all impacted residents on a form provided by City
at least seven (7) Days prior to the scheduled outage.
Spec. No.
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72500.00001\32100500.2
B. Design -Build Entity shall be responsible for providing, at its cost, any temporary utility
or facilities necessitated by the utility outage.
1.11 Schedule Constraints.
NOT USED
1.12 Noise Restrictions
NOT USED
1.13 Environmental Conditions
NOT USED
1.14 Coordination with Other Contractors.
NOT USED
1.15 Temr)orary Field Office
NOT USED
1.16 Fuaitive Dust
NOT USED
END OF SPECIAL CONDITIONS
Spec. No. 98 00 72 53 -- SPECIAL CONDITIONS
72500.00001\32100500.2
01 00 00 — GENERAL REQUIREMENTS
SECTION 1.1 - GENERAL
1.1.1 LAYOUT OF WORK AND QUANTITY SURVEYS
a. General. The Design -Build Entity shall utilize a properly licensed surveyor to perform
all layout surveys required for the control and completion of the Work, and all
necessary surveys to compute quantities of Work performed.
Primary control consists of benchmarks and horizontal control points in the vicinity of
the Work. Before beginning any layout work or construction activity, the Design -Build
Entity shall check and verify primary control, and shall advise the City Representative
of any discrepancies.
b. Quantity surveys. The Design -Build Entity shall perform such surveys and
computations as are necessary to determine quantities of Work performed or placed
during each progress payment period, and shall perform all surveys necessary for the
City's Representative to determine final quantities of Work in place. The City's
Representative will determine final quantities based upon the survey data provided by
the Design -Build Entity, and the design lines and grades. If requested by the City's
Representative, the Design -Build Entity shall provide an electronic copy of data used
for quantity computations.
All surveys performed for measurement of final quantities of Work and material shall
be subject to approval of City's Representative. Unless waived by City's
Representative in each specific case, quantity surveys made by the Design -Build
Entity shall be made in the presence of City's Representative.
c. Surveying
(1) Accuracy. Degree of accuracy shall be an order high enough to satisfy tolerances
specified for the Work and the following:
(a) Right-of-way and alignment of tangents and curves shall be within 0.1 foot.
(b) Structure points shall be set within 0.01 foot, except where operational function
of the special features or installation of metalwork and equipment require
closer tolerances. When formwork has been placed and is ready for concrete,
the Design -Build Entity shall check the formwork for conformance with the
drawings and to ensure that the forms are sufficiently within the tolerance limits
for the completed work.
(c) Cross-section points shall be located within 0.1 foot, horizontally and vertically.
Spec. No. 99 00 72 53 — GENERAL REQUIREMENTS
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(d) Aerial Mapping shall meet National Mapping Standards for 2-foot contour
intervals.
d. Records. Survey data shall be recorded in accordance with recognized professional
surveying standards. Original field notes, computations, and other surveying data
shall be recorded on electronic data collectors or in standard field books and must be
of sufficient quality to enable the Design -Build Entity to prepare accurate record
drawings as required by the Contract Documents.
e. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required for surveys for the layout of work and quantity surveys
shall be included in the Schedule of Pay Items for items of work requiring the surveys.
No additional compensation shall be made to the Design -Build Entity for this Work.
1.1.2 SUBMITTAL REQUIREMENTS FOR MANUALS AND RECORD DRAWINGS
a. General. The Design -Build Entity shall furnish all materials and perform all Work
required for furnishing submittals to City in accordance with Contract Documents.
b. Technical Manuals.
(1) The Design -Build Entity shall submit technical operation and maintenance
information for each item of mechanical, electrical and instrumentation equipment
in an organized manner in the Technical Manual. It shall be written so that it can
be used and understood by City's operation and maintenance staff.
(2) The Technical Manual shall be subdivided first by specification section number;
second, by equipment item; and last, by "Category." "Categories" shall conform to
the following (as applicable):
(a) Category 1 - Equipment Summary:
1. Summary: A summary table shall indicate the equipment name, equipment
number, and process area in which the equipment is installed.
(b) Category 2 - Operational Procedures:
1. Procedures: Manufacturer -recommended procedures on the following shall
be included in Part 2:
Spec. No.
72500.00001\32100500.2
Installation.
Adjustment.
Startup.
Location of controls, special tools, equipment required, or related
instrumentation needed for operation.
Operation procedures.
100 00 72 53 — GENERAL REQUIREMENTS
Load changes.
Calibration.
Shutdown.
Troubleshooting.
Disassembly.
Reassembly.
Realignment.
Testing to determine performance efficiency.
Tabulation of proper settings for all pressure relief valves, low and
high pressure switches, and other protection devices.
List of all electrical relay settings including alarm and contact
settings.
(c) Category 3 - Preventive Maintenance Procedures:
1. Procedures: Preventive maintenance procedures shall include all
manufacturer -recommended procedures to be performed on a periodic
basis, both by removing and replacing the equipment or component, and
by leaving the equipment in place.
2. Schedules: Recommended frequency of preventive maintenance
procedures shall be included. Lubrication schedules, including lubricant
SAE grade, type, and temperature ranges, shall be covered.
(d) Category 4 - Parts List:
1. Parts List: A complete parts list shall be furnished, including a generic
description and manufacturer's identification number for each part.
Addresses and telephone numbers of the nearest supplier and parts
warehouse shall be included.
2. Drawings: Cross -sectional or exploded view drawings shall accompany
the parts list.
(e) Category 5 - Wiring Diagrams:
1. Diagrams: Part 5 shall include complete internal and connection wiring
diagrams for electrical equipment items.
(f) Category 6 - Shop Drawings:
1. Drawings: This part shall include approved shop or fabrication drawings,
complete with dimensions.
(g) Category 7 - Safety:
Spec. No.
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101 00 72 53 — GENERAL REQUIREMENTS
1. Procedures: This part describes the safety precautions to be taken when
operating and maintaining the equipment or working near it.
(h) Category 8 - Documentation:
1. All equipment warranties, affidavits, and certifications required by the
Technical Specifications shall be placed in this part.
(3) The Design -Build Entity shall furnish to City six (6) identical Technical Manuals.
Each set shall consist of one or more volumes, each of which shall be bound in a
standard binder.
c. Spare Parts List - The Design -Build Entity shall furnish to City six (6) identical sets of
spare parts information for all mechanical, electrical, and instrumentation equipment.
The spare parts list shall include the current list price of each spare part. The spare
parts list shall include those spare parts which each manufacturer recommends be
maintained by City in inventory. Each manufacturer or supplier shall indicate the
name, address, and telephone number of its nearest outlet of spare parts to assist City
in ordering. The Design -Build Entity shall cross-reference all spare parts lists to the
equipment numbers designated in the Contract Documents. The spare parts lists shall
be bound in standard size, 3-ring binder.
d. Record Drawings
(1) The .Design -Build Entity shall maintain one record set of Drawings at the Site. On
these, it shall mark all Project conditions, locations, configurations, and any other
changes or deviations which may vary from the information represented in the
original Contract Documents, including buried or concealed construction and utility
features which are revealed during the course of construction. Special attention
shall be given to recording the horizontal and vertical location of all buried utilities
that differ from the locations indicated, or which were not indicated on the Contract
Drawings. Said record drawings shall be supplemented by any detailed sketches
as necessary or directed to fully indicate the Work as actually constructed. These
master record drawings of the as -built conditions, including all revisions made
necessary by Addenda and Change Orders shall be maintained up-to-date during
the progress of the Project. Red ink shall be used for alterations and notes. Notes
shall identify relevant Change Orders by number and date.
(2) For all Projects involving the installation of any pipeline, Design -Build Entity shall
survey and record the top of the pipe at a minimum of every 100 linear feet, and at
each bend, recording both the horizontal and vertical locations.
(3) Record drawings shall be accessible to City's Representative at all times during
the construction period.
(4) Upon Completion of the Project and as a condition of final acceptance, the Design -
Build Entity shall finalize and deliver a complete set of Record Drawings to City's
Representative. The information submitted by the Design -Build Entity will be
Spec. No.
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102 00 72 53 — GENERAL REQUIREMENTS
assumed to be correct, and the Design -Build Entity shall be responsible for, and
liable to City, for the accuracy of such information, and for any errors or omissions
which may or may not appear on the Record Drawings.
e. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to complete the Manuals and Record Drawings shall
be included in Design -Build Entity's Proposal and distributed in the Schedule of Pay.
No additional compensation shall be made to the Design -Build Entity for this Work.
SECTION 1.2 - MATERIALS
1.2.1 MATERIALS TO BE FURNISHED BY THE CONTRACTOR
a. Inspection of Materials. Materials furnished by the Design -Build Entity which will
become a part of the Project shall be subject to inspection at any one or more of the
following locations, as determined by City's Representative: at the place of production
or manufacture, at the shipping point, or at the site of the Work. To allow sufficient
time to provide for inspection, the Design -Build Entity shall submit to City's
Representative, at the time of issuance, copies of purchase orders or other written
instrument confirming procurement of the materials, including drawings and other
pertinent information, covering materials on which inspection will be made.
No later than fourteen (14) Days prior to manufacture of material, Design -Build Entity
shall inform City's Representative, in writing, the date the material is to be
manufactured.
b. Design -Build Entity's Obligations. The inspection of materials at any of the locations
specified above or the waiving of the inspection thereof shall not impact whether the
materials and equipment conform to the Contract Documents. Design -Build Entity will
not be relieved from furnishing materials meeting the requirements of the Contract
Documents due to City's inspection or lack of inspection of the equipment or materials.
Acceptance of any materials will be made only after materials are installed in the
Project.
Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to accommodate City's testing efforts, including any
travel required by Design -Build Entity's forces, shall be included in Design -Build
Entity's Proposal and distributed in the Schedule of Pay Items related to the materials
requiring testing. No additional compensation shall be made to the Design -Build Entity
for this Work.
SECTION 1.3 - LOCAL CONDITIONS AND REQUIREMENTS
1.3.1 ACCESS TO THE WORK AND HAUL ROUTES
a. General. All work on the rights -of -way necessary for access to the Site shall be
performed by the Design -Build Entity.
Spec. No.
72500. 00001 \321 00500.2
103 00 72 53 — GENERAL REQUIREMENTS
b. Access, Damage, Restoration. The Design -Build Entity shall make its own
investigation of the condition of available public or private roads and of clearances,
restrictions, bridge -load limits, permit or bond requirements, and other limitations that
affect or may affect transportation and ingress or egress at the Site. Claims for
changes in GMP or Contract Times arising out of the unavailability of transportation
facilities or limitations thereon shall not be considered by City.
The Design -Build Entity shall maintain and repair any damage arising out of Design -
Build Entity's operations to all roads used during construction of the Project, and upon
completion of all Work, but prior to final acceptance, the roads shall be restored to their
original condition. Prior to using any road for access to the Site, the Design -Build
Entity shall conduct a photograph and/or video survey of the roadway with a copy
submitted to City's representative.
c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to complete this Work, shall be included in Design -Build
Entity's Proposal and distributed in the Schedule of Pay Items. No additional
compensation shall be made to the Design -Build Entity for this Work.
1.3.2 CONSTRUCTION AT EXISTING UTILITIES
a. General. Where the Work to be performed crosses or otherwise interferes with water,
sewer, gas, or oil pipelines; buried cable; or other public or private utilities, the Design -
Build Entity shall perform construction in such a manner so that no damage will result
to either public or private utilities. It shall be the responsibility of the Design -Build
Entity to determine the actual locations of, and make accommodates to maintain, all
utilities.
b. Permission, Notice and Liability. Before any utility is taken out of service, permission
shall be obtained by the Design -Build Entity from the owner. The owner, any impacted
resident or business owner and the City Representative will be advised of the nature
and duration of the utility outage as well as the Design -Build Entity's plan for providing
temporary utilities if required by the owner. The Design -Build Entity shall be liable for
all damage which may result from its failure to maintain utilities during the progress of
the Work, and the Design -Build Entity shall indemnify City as required by the Contract
Documents from all claims arising out of or connected with damage to utilities
encountered during construction; damages resulting from disruption of service; and
injury to persons or damage to property resulting from the negligent, accidental, or
intentional breaching of utilities.
c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to complete this Work, shall be included in Design -Build
Entity's Proposal and distributed in the Schedule of Pay Items. No additional
compensation shall be made to the Design -Build Entity for this Work.
Spec. No.
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104 00 72 53 — GENERAL REQUIREMENTS
1.3.3 TRAFFIC CONTROL
a. General. Design -Build Entity shall abide by traffic control plans approved by the
appropriate jurisdiction.
b. Protections. Roads subject to interference by the Work shall be kept open or suitable
temporary passages through the Work shall be provided and maintained by the
Design -Build Entity. The Design -Build Entity shall provide, erect, and maintain all
necessary barricades, suitable and sufficient flasher lights, flag persons, danger
signals, and signs, and shall take all necessary precautions for the protection of the
Work and the safety of the public. No construction work along public or private roads
may proceed until the Design -Build Entity has proper barricades, flasher lights, flag
persons, signals, and signs in place at the construction site.
c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to complete this Work, shall be included in Design -Build
Entity's Proposal and distributed in the Schedule of Pay Items. No additional
compensation shall be made to the Design -Build Entity for this Work.
SECTION 1.4 - ENVIRONMENTAL QUALITY PROTECTION
1.4.1 LANDSCAPE AND VEGETATION PRESERVATION
a. General. The Design -Build Entity shall exercise care to preserve the natural landscape
and vegetation, and shall conduct operations so as to prevent unnecessary
destruction, scarring, or defacing of the natural surroundings in the vicinity of the Work.
b. Damage and Restoration. Movement of crews and equipment within the rights -of -way
and over routes provided for access to the Work shall be performed in a manner to
prevent damage to property. When no longer required, construction roads shall be
restored to original contours.
Upon completion of the Work, and following removal of construction facilities
and required cleanup, land used for construction purposes and not required for
the completed installation shall be scarified and regraded, as required, so that
all surfaces are left in a condition that will facilitate natural revegetation, provide
for proper drainage, and prevent erosion.
c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to complete this Work, shall be included in Design -Build
Entity's Proposal and distributed in the Schedule of Pay Items. No additional
compensation shall be made to the Design -Build Entity for this Work.
1.4.2 PROTECTED SPECIES
a. General. If, in the performance of the Work, evidence of the possible occurrence of
any Federally listed threatened or endangered plant or animal is discovered, the
Design -Build Entity shall notify the City Representative immediately, giving the location
Spec. No. 105 00 72 53 — GENERAL REQUIREMENTS
72500.00001\32100500.2
and nature of the findings. Written confirmation of the evidence, location and nature
of the findings shall be forwarded to City within 2 Days.
b. Procedures. The Design -Build Entity shall immediately cease all construction activities
in the immediate area of the discovery to the extent necessary to protect the
endangered plant or animal.
If directed by the City Representative, Design -Build Entity will refrain from working in
the immediate area, suspend the Work in its entirety, or alter its performance to ensure
full compliance with all applicable permits, laws and regulations. Any City directed
changes to the Work as a result of a siting will be pursuant to the Contract Documents.
c. False Siting. Any costs or delays incurred by City or the Design -Build Entity due to
unreasonable or false notification of an endangered plant or animal will be borne by
the Design -Build Entity.
d. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to comply with this paragraph, shall be included in
Design -Build Entity's Proposal and distributed in the Schedule of Pay Items. No
additional compensation shall be made to the Design -Build Entity for this Work.
1.4.3 PRESERVATION OF HISTORICAL AND ARCHEOLOGICAL RESOURCES
a. General. If, in the performance of the Work, Design -Build Entity should unearth cultural
resources (for example, human remains, animal bones, stone tools, artifacts and/or
midden deposits) through excavation, grading, watering or other means, the Design -
Build Entity notify the Construction/Archeological Monitor and/or the City
Representative immediately, giving the location and nature of the findings. Written
confirmation of the evidence, location and nature of the findings shall be forwarded to
the Construction/Archeological Monitor and/or City within 2 Days.
b. Procedures. The Design -Build Entity shall immediately cease all construction activities
in the immediate area of the discovery to the extent necessary to protect the cultural
resource.
If directed by the City Representative, Design -Build Entity will refrain from working in
the immediate area, suspend the Work in its entirety, or re -sequence and/or alter its
performance to ensure full compliance with all applicable permits, laws and
regulations. Should the presence of cultural resources be confirmed, the Design -Build
Entity will assist the City Representative and the Construction/Archeological Monitor
in the preparation and implementation of a data recovery plan. The Design -Build Entity
shall provide such cooperation and assistance as may be necessary to preserve the
cultural resources for removal or other disposition. Any City directed changes to the
Work as a result of the cultural resource will be pursuant to the Contract Documents.
c. Design -Build Entity's Liability. Should Design -Build Entity, without permission, injure,
destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the
Site, it will be subject to disciplinary action, arrest and penalty under applicable law.
Spec. No.
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106 00 72 53 — GENERAL REQUIREMENTS
The Design -Build Entity shall be principally responsible for all costs of mitigation and/or
restoration of cultural resources related to the unauthorized actions identified above.
Design -Build Entity shall be required to pay for unauthorized damage and mitigation
costs to cultural resources (historical and archeological resources) as a result of
unauthorized activities that damage cultural resources and shall indemnify City
pursuant to the Contract Documents.
d. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to comply with this paragraph, shall be included in
Design -Build Entity's Proposal and distributed in the Schedule of Pay Items. No
additional compensation shall be made to the Design -Build Entity for this Work.
1.4.4 DUST AND POLLUTION CONTROL
a. Design -Build Entity shall provide all necessary material, equipment and labor to
prevent and control the emission of dust and any other potential pollutant on site.
b. Design -Build Entity shall not discharge into the atmosphere from any source smoke,
dust or other air contaminants in violation of the law, rules, and regulations of the
governing agency.
c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material,
equipment, and labor required to comply with this paragraph, shall be included in
Design -Build Entity's Proposal and distributed in the Schedule of Pay Items. No
additional compensation shall be made to the Design -Build Entity for this Work.
1.4.5 MANAGEMENT OF STORM, SURFACE AND OTHER WATERS
a. Storm, surface, ground, nuisance, or other waters may be encountered at various
times during the Work. Design -Build Entity hereby acknowledges that it has
investigated the risk arising from such waters, has prepared its Proposal accordingly,
and assumes any and all risks and liabilities arising therefrom.
b. Design -Build Entity shall keep itself and all subcontractors, staff, and employees fully
informed of and in compliance with all local, state and federal laws, rules and
regulations that may impact, or be implicated by the performance of the Work
including, without limitation, all applicable provisions of the City's ordinances
regulating discharges of storm water; the Federal Water Pollution Control Act (33
U.S.C. § 1251 et seq.); the California Porter -Cologne Water Quality Control Act (Water
Code § 13000 et seq.); and any and all regulations, policies, or permits issued
pursuant to any such authority. These include, but are not limited to California
Regional Water Quality Control Boards (Santa Ana and San Diego Regions) Order
No. R8-2009-0030 (NPDES Permit No. CAS 618030), Order No. R9-2009-0002, Order
No. R8-2009-0045, Order No. R9-2013-0001 as amended by Order Nos. R9-2015-
0001 and R9-2015-0100, and State Water Resources Control Board Order No. 2010-
0014-DWQ, Order No. 2009-0009-DWQ, and Order No. 2012-0006-DWQ, and any
amendment or renewal thereof.
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107 00 72 53 — GENERAL REQUIREMENTS
c. Design -Build Entity shall comply with the lawful requirements of the City, and any other
municipality, drainage district, or other local agency with jurisdiction over the location
where the Work is to be conducted, regarding discharges of storm water to separate
storm drain systems or watercourses.
d. Design -Build Entity shall be required to comply with all aspects of the State Water
Resources Control Board ("State Board") Water Quality Order No. 2009-0009-DWQ,
National Pollutant Discharge Elimination System General Permit for Storm Water
Discharges Associated with Construction Activity, including any amendment or
renewal thereof, ("Construction General Permit") for all projects that involve
construction on or disturbance of one acre or more of land or which are part of a larger
common area of development.
e. City may require Design -Build Entity to file the Notice of Intent ("NOI") and obtain
coverage for the Project under the Construction General Permit. This may include
filing all necessary documentation including the Permit Registration Documents
("PRDs") through the Stormwater Multiple Applications and Report Tracking System
("SMARTS"); preparing and implementing a Storm Water Pollution Prevention Plan
("SWPPP") for the Work site; implementing all other provisions, and monitoring and
reporting requirements required by the Construction General Permit; and providing a
Qualified SWPPP Developer ("QSD") and Qualified SWPPP Practitioner ("QSP"), as
necessary for all Work site activities, including but not limited to preparation and
submittal of all reports, plans, inspections, and monitoring information in compliance
with the Construction General Permit. City retains the right to develop its own
documentation for the project site, including but not limited to the SWPPP, and in the
alternative may require Design -Build Entity to adopt and implement portions of the City
developed SWPPP. Specific requirements for the Work site shall be set forth in the
Special Conditions. Design -Build Entity shall include all costs of compliance with
specified requirements in the GMP.
For those Work sites where construction activity results in the disturbance of less than
one acre of total land area and/or do not need coverage under the Construction
General Permit, the Design -Build Entity shall be responsible for preparing and
implementing an Erosion and Sediment Control Plan in accordance with California
Regional Water Quality Control Board Order No. 118-2009-0030, Order No. R9-2013-
0001 as amended by Order Nos. R9-2015-0001 and 119-2015-0100 and any
amendment or renewal thereof.
g. Notwithstanding the above, before any PRDs, SWPPP, or other Construction General
Permit related document may be submitted to the State Water Resources Control
Board or implemented on the Work site, it must first be reviewed and approved by the
City and/or the City's designee. The City expressly reserves the right to procure
coverage under the Construction General Permit for the Work site if Design -Build
Entity fails to draft satisfactory PRDs or SWPPP or otherwise fails to proceed in a
manner that complies with the requirements of the Construction General Permit. The
City additionally reserves the right to hire additional contractors to maintain compliance
at the Work site. Whether Design -Build Entity has adequately maintained compliance
with the Construction General Permit shall be the City's sole determination. Any costs
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108 00 72 53 — GENERAL REQUIREMENTS
incurred by the City in procuring coverage under the Construction General Permit, or
drafting and/or implementing a SW PPP for the Work site shall be paid by Design -Build
Entity.
h. Failure to comply with laws, regulations, and ordinances listed in this Article is a
violation of federal and state law. Notwithstanding any other indemnity contained in
this Agreement, Design -Build Entity agrees to indemnify and hold harmless the City,
its officials, officers, agents, employees and authorized volunteers from and against
any and all claims, demands, losses or liabilities of any kind or nature which the City,
its officials, officers, agents, employees and authorized volunteers may sustain or incur
for noncompliance with the laws, regulations, and ordinances listed above, arising out
of or in connection with the Work, except for liability resulting from the sole established
negligence, willful misconduct or active negligence of the City, its officials, officers,
agents, employees or authorized volunteers.
i. City reserves the right to defend any enforcement action or civil action brought against
the City for Design -Build Entity's failure to comply with any applicable water quality
law, regulation, or policy. Design -Build Entity hereby agrees to be bound by, and to
reimburse the City for the costs associated with, any enforcement action and/or
settlement reached between the City and any relevant enforcement entity.
j. City may seek damages from Design -Build Entity for delay in completing the Work in
accordance with the Contract Documents, caused by Design -Build Entity's failure to
comply with the laws, regulations and policies described in this Article, or any other
relevant water quality law, regulation, or policy..
k. In addition to compliance with the Permit, Design -Build Entity shall comply with the
lawful requirements of any applicable municipality, City, drainage district, flood control
district, and other local agencies regarding discharges of storm water, surface water,
groundwater or other nuisance waters off of the Project site.
I. Oil storage tanks management.
(1) Storage tank placement. All oil or other petroleum product (hereinafter referred to
collectively as oil) storage tanks shall be placed at least 20 feet from streams,
flowing or dry watercourses, lakes, wetlands, reservoirs, and any other water
source.
(2) Storage area dikes. Storage areas shall be diked at least 12 inches high or graded
and sloped to permit safe containment of leaks and spills equal to the capacity of
all tanks and/or containers located within each area, plus a sufficient amount of
freeboard to contain the 25-year rainstorm.
(3) Diked area barriers. Diked areas shall have an impermeable barrier at least 10
mils thick. Areas used for refueling operations shall have an impermeable liner at
least 10 mils thick buried under 2 to 4 inches of soil.
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(4) Spill Prevention Control and Countermeasure Plan (SPCC). Where the location of
a construction site is such that oil from an accidental spillage could reasonably be
expected to enter into or upon the navigable waters of the United States or
adjoining shorelines, and the aggregate storage of oil at the site is over 1,320
gallons or a single container has a capacity in excess of 660 gallons, the Design -
Build Entity shall prepare an SPCC Plan. The Design -Build Entity shall submit the
SPCC Plan to the City at least 30 Days prior to delivery or storage of oil at the site.
The Plan must have been reviewed and certified by a registered professional
engineer in accordance with 40 C.F.R., part 112
m. Underground tank prohibition. The Design -Build Entity shall not use underground
storage tanks.
n. Construction safety standards. The Design -Build Entity shall comply with the sanitation
and potable water requirements of Section 7 of United States Bureau of Reclamation's
publication "Reclamation Safety And Health Standards."
o. Dredge and fill permit. The City will obtain a permit to discharge dredge and fill material
into the waters of the United States, as required under Section 404 of the Clean Water
Act. All work occurring within the waters of the United States shall comply with the
conditions of the permit and conditions of the Section 401 Water Quality Certification.
p. Other Permits.
(1) Other permits applicable to the Project are listed in the Special Conditions. The
Design -Build Entity shall obtain all other necessary licenses and permits.
(2) Monitoring. The Design -Build Entity is required to conduct monitoring in order to
meet the requirements of the permits, which may include sampling, testing and
inspections.
(3) Recordkeeping. The Design -Build Entity shall retain all records and data required
by the permits for the time specified in the contract.
q. Cost. Except as specified herein, the cost of complying with this section shall be
included in the Schedule of Pay Items for work which necessitate the water pollution
prevention measures required by this paragraph.
END OF GENERAL REQUIREMENTS
Spec. No. 110 00 72 53 — GENERAL REQUIREMENTS
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